United States v. Mueller

United States Court of Appeals,

Eleventh Circuit.

No. 94-3617.

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,

v.

Reinhard P. MUELLER, Defendant-Appellant, Cross-Appellee.

Feb. 14, 1996.

Appeals from the United States District Court for the Middle
District of Florida. (No. 94-90-Cr-Orl-18), G. Kendall Sharp,
Judge.

Before BIRCH, Circuit Judge, and CLARK and WEIS *, Senior Circuit
Judges.

WEIS, Senior Circuit Judge:

Defendant was convicted on one count of tax evasion and two

counts of tax perjury based on his failure to report and pay tax on

funds he acquired by failing to distribute a liquidating dividend

of a corporation he controlled. We determine that there was

adequate evidence to sustain those judgments.

Defendant was also convicted on one count of bank fraud

arising from the liquidation. However, we conclude that the

defendant's conduct in obstructing discovery and filing misleading

pleadings in a civil suit brought by a financial institution to

recover dividends due it did not constitute criminal conduct under

the bank fraud statute. We accordingly direct acquittal on that

count.

The district court sentenced defendant to incarceration for

fifty-one months, a fine of $50,000, and a term of three years

*
Honorable Joseph F. Weis, Jr., Senior U.S. Circuit Judge
for the Third Circuit, sitting by designation.
supervised release. In addition, defendant was ordered to pay

restitution in the amount of $654,735.51 on the condition, however,

that if he paid the fine and made restitution, the prison term and

supervisory release would terminate.

The prosecution against defendant arose out of his actions as

majority shareholder, president, and director of Omni Equities,

Inc., formerly known as A.T. Bliss & Company. In April 1986, at

his request, Omni's three-member Board of Directors voted to

liquidate the company. Defendant became trustee for the

shareholders of Omni with the authority to distribute liquidating

dividends to them.

The Depository Trust Company, a federally chartered

institution, was a substantial shareholder in Omni, and failing to

receive a liquidating dividend, filed a civil suit in October 1986

against Omni and defendant in Florida state court. Ultimately,

Depository Trust was granted summary judgment, but recovered only

$10,259 of the $665,000 awarded in its favor.

Defendant has appealed his convictions, asserting that the

evidence was insufficient, the trial court erred in admitting the

deposition of a witness taken in a foreign country, and the

prosecutor made improper comments to the jury in his summation.

The government has cross-appealed the sentence imposed by the trial

court.

I.

THE TAX COUNTS

A. Tax Evasion

Count one of the indictment charged defendant with evasion of
tax due for the year 1986. On April 8, 1986, two days before the

Omni board approved action to liquidate the company, defendant sold

his shares in Omni for $1,117,104 to R. Mueller & Sons, Ltd., of

London, England. According to the government, R. Mueller & Sons

was the new name given to an English "shelf corporation," an entity

that can be acquired and used by anyone under whatever name one

chooses. After activating R. Mueller & Sons through acquisition of

the shelf corporation, defendant controlled it and handled its

financial affairs.

Omni's primary asset consisted of shares in MagnaCard. On

April 26, 1986, Omni sold its holdings in MagnaCard to Jacob Growth

Capital, Ltd., an English company, for $3.6 million. The sale was

made through Walter L. Jacob & Co., a London securities dealer.

The relationship between Jacob Growth Capital and Walter L. Jacob

& Co. is not clear from the record. Three days later, defendant

directed that $2.3 million of proceeds due Omni from the sale of

MagnaCard be sent to R. Mueller & Sons as a liquidating dividend,

and that $940,000 be delivered to Omni's lawyers in Florida. The

latter amount was eventually deposited in an account at Meritor

Bank, Lakeland, Florida, in the defendant's name as trustee for

Omni's stockholders.

On May 4, 1986, defendant began to draw dividend checks from

the Meritor account and mailed them to stockholders with a letter

explaining Omni's liquidation. Later, defendant withdrew $650,000

from the Meritor account in order to reduce Omni's exposure to

pre-judgment attachments. However, by August 1986, that sum was

redeposited to honor checks issued as liquidating dividends.
 On August 19, 1986, defendant directed Meritor Bank to wire

$485,177.37 (apparently the balance of the account) to Walter L.

Jacob & Co., Barclays Bank, London. Defendant asserted that this

account was a contingency fund set up to meet potential claims

against Omni's officers arising out of the liquidation of the

company. Subsequently, all of Omni's funds at Walter L. Jacob &

Co. were transferred to an account in Hong Kong maintained by

Walter L. Jacob.

Depository Trust never received the $496,437.50 in liquidating

dividends from Omni to which it was entitled, although defendant

maintained that he had mailed checks to Depository Trust in May

1986.

In his 1986 income tax return, defendant and his wife reported

adjusted gross income of $159,525, and a loss of $156,025 from the

defendant's sale of Omni stock to R. Mueller & Sons. The

government contended that defendant failed to report as income the

$486,178 due Depository Trust (the amount of the liquidating

dividend less the $10,259 recovered from an attachment against

Omni's account). In addition, the government asserted that as a

result of his sale of Omni stock to R. Mueller & Sons, defendant

realized a capital gain of $911,975, rather than the loss he

reported.

Defendant argued that he never received the $485,000 wired

from the Meritor Bank account to Barclays Bank, insisting instead

that it went to Walter L. Jacob & Co. He also contended that

Walter L. Jacob & Co. did not lay out cash for the MagnaCard stock.

Instead, as partial payment, Jacob offset approximately $1 million
it had loaned to defendant. Jacob provided the remainder of the

sale price by issuing debentures, which were never paid.

We need not decide whether there was sufficient evidence for

the jury to convict defendant of tax evasion on the sale of stock

to R. Mueller & Sons because the verdict could properly have been

based on the defendant's exercise of control over the money due

Depository Trust.

26 U.S.C. § 7201 provides that "[a]ny person who willfully

attempts in any manner to evade or defeat any tax ... shall ... be

guilty of a felony...." Gain, lawful or unlawful, constitutes

taxable income "when its recipient has such control over it that,

as a practical matter, he derives readily realizable economic value

from it." Rutkin v. United States, 343 U.S. 130, 137, 72 S.Ct.

571, 575, 96 L.Ed. 833 (1952). See also Commissioner v. Glenshaw

Glass Co., 348 U.S. 426, 431, 75 S.Ct. 473, 477, 99 L.Ed. 483

(1955) (receipt of punitive damages taxable); United States v.

Schmidt, 935 F.2d 1440, 1448 (4th Cir.1991) (dominion and control

of property makes it taxable); In re Bentley, 916 F.2d 431, 432

(8th Cir.1990) (increase in wealth over which taxpayer has dominion

is taxable).

Viewing the evidence in the light most favorable to the

government, United States v. Morris, 20 F.3d 1111, 1114 (11th

Cir.1994), as we must in an appeal from a conviction, we conclude

that the jury was entitled to find that defendant exercised

sufficient control over the $485,177 due Depository Trust to make

it taxable to him. The money went to an account at Barclays Bank,

ostensibly for an Omni contingency fund, but was actually for the
defendant's benefit.

Although supposedly designed to protect former officers and

directors of Omni, the contingency fund was not so used. In one

instance, when the former secretary and director of Omni was sued

for participation in the liquidation, she received no assistance

from the Barclays account. Pursuant to the defendant's

instructions, no withdrawal from the account was permitted without

his prior written authorization. None of the directors were aware

of the existence of the account, and at the time the deposit was

made, the jury could find that Omni, in fact, was but the

defendant's alter ego. Although defendant contends that he was

acting only as an agent or conduit for Omni, the jury was free to

reject that position under the evidence presented by the

government.

B. Tax Perjury

The bulk of the evidence presented on counts three and four,

the tax perjury charges, involved the same facts as those

underlying the tax evasion charge. Specifically, the indictment

alleged that in his 1986 income tax return and 1988 amended return,

defendant failed to report as income the money owed Depository

Trust; failed to report as income the liquidating dividend

received by R. Mueller & Sons; reported a capital loss instead of

a gain from his sale of Omni stock to R. Mueller & Sons; and

underreported his adjusted gross income. To the extent that these

charges mirror the tax evasion count, defendant does not raise any

additional arguments.

However, defendant was also charged with falsely checking the
"no" box on his 1986 return that asked whether he had signature or

other authority over a foreign bank account. It is not disputed

that, in fact, he did have such power. Defendant contended that

the matter was simply a mistake, and he produced evidence that on

July 31, 1987, he filed a form with the IRS in Detroit reporting

his connection with the London bank accounts. However, he had

filed his tax return at the IRS office in Atlanta.

The government points out that, when defendant filed an

amended return on October 3, 1988, again in Atlanta, he did not

correct the false statement about the foreign bank accounts. The

determination of whether the misrepresentation about the bank

accounts was willful, or merely a mistake, is a typical issue for

a jury to resolve, and here it decided against defendant.

We conclude, therefore, that there was adequate evidence to

sustain the convictions on counts one, three, and four.

II.

THE DEPOSITION OF A FOREIGN WITNESS

Defendant maintains that the trial court erred in admitting

the deposition of David Brailsford, an English citizen who lived in

the London area and was unavailable to testify at trial.

Brailsford was the Chief Examiner of the United Kingdom's

Department of Trade and Industry, Company Investigations Division,

and had investigated the activity of Walter L. Jacob & Co.

Defendant contends that the reading of this deposition at trial

violated the confrontation clause of the Sixth Amendment.

Depositions, particularly those taken in foreign countries,

are generally disfavored in criminal cases. For an extensive
discussion, see United States v. Drogoul, 1 F.3d 1546, 1551 (11th

Cir.1993). Nevertheless, depositions are authorized "when doing so

is necessary to achieve justice and may be done consistent with the

defendant's constitutional rights." Id. See Fed.R.Crim.P. 15.

In this case, the deposition took place in London. Defense

counsel was present and cross-examined the witness. Defendant

listened to the testimony on the telephone and was able to consult

with his lawyer as the deposition proceeded. Unlike depositions

taken in some foreign countries, see, e.g., Drogoul, 1 F.3d at

1554-55, the procedures here followed those used in the United

States. There were no language barriers and defendant was able to

participate and advise his counsel. Foreign depositions have been

approved in similar instances, United States v. Gifford, 892 F.2d

263, 265 (3d Cir.1989), see United States v. Kelly, 892 F.2d 255,

262-63 (3d Cir.1989), and even in cases where the proceeding was in

a foreign language and conducted by a judicial officer rather than

counsel. See United States v. Salim, 855 F.2d 944, 954-55 (2d

Cir.1988).

Defendant complains that he was not provided with copies of

all the documents used at the deposition until several hours before

it was scheduled. However, the documents were faxed to defendant

and were available to him and his counsel as the deposition

proceeded. In his brief to this Court, defendant has not cited any

specific instance of prejudice caused by late receipt of the

documents. We are satisfied that the district court properly

permitted the introduction of deposition evidence in this case.

III.
 PROSECUTORIAL MISCONDUCT

During his summation to the jury, the Assistant U.S. Attorney

said that Mueller "lied on his affidavit submitted, he lied on his

tax returns, he lied to Social Security Administration, he lied

when he filled out and signed the tax return and I submit to you

that not only goes to show his willfulness, but it also goes to

show the credibility of the statements that have been given here."

Defendant did not object to these comments at trial, and

consequently, we review only for plain error. United States v.

Wiggins, 788 F.2d 1476, 1478 (11th Cir.1986). To meet that

standard, a prosecutor's remarks during closing argument must be

both improper and prejudicial to a substantial right of the

defendant. United States v. Thomas, 8 F.3d 1552, 1561 (11th

Cir.1993). A reversal is warranted when prosecutorial misconduct

was so pronounced and persistent that it permeated the entire

atmosphere of the trial. United States v. McLain, 823 F.2d 1457,

1462 (11th Cir.1987).

We do not approve of the remarks of the Assistant U.S.

Attorney and, had an objection been raised at the time they were

made, a sharp curative instruction would have been in order. It is

improper for a prosecutor to directly convey his personal beliefs

about a defendant's credibility in closing argument. However, in

the circumstance of this case, we cannot say that the comments

reached the level of plain error. As the Supreme Court stated in

United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1047, 84

L.Ed.2d 1 (1985), "[v]iewed in context, the prosecutor's

statements, although inappropriate and amounting to error, were not
such as to undermine the fundamental fairness of the trial and

contribute to a miscarriage of justice." We conclude, therefore,

that the prosecutor's final summation did not constitute reversible

error.

IV.

THE BANK FRAUD COUNT

Much of the evidence previously discussed was not admissible

on the bank fraud charge, although all counts were tried together

despite the defendant's request for a severance.

In 1986, defendant entered into a plea agreement with the

United States with respect to an indictment in the Southern

District of Florida alleging criminal tax violations. As part of

the arrangement, the government was barred from bringing future

charges against defendant pertaining to his involvement with Omni's

predecessor, A.T. Bliss & Company.

After the indictment in the present case was filed in the

Middle District of Florida, defendant sought enforcement of the

plea bargain from Judge Ryskamp, who had approved it in the

Southern District of Florida. Judge Ryskamp granted the requested

relief and issued an order reading: "The United States is enjoined

from presenting any evidence of Defendant Mueller's conduct, prior

to November 7, 1986, with regard to [the bank fraud count] of the

indictment pending against him in the Middle District of Florida."

The record in this case contains few details of the

defendant's conduct after November 7, 1986 having any relevance to

bank fraud. What evidence there is consists of references to the

suit that Depository Trust filed against Omni and defendant in the
Florida state court on October 15, 1986, asserting a claim for the

liquidating dividend. Apparently, defendant was not represented by

counsel in that case, but prepared and filed an answer on November

19, 1986 for himself as well as for Omni.

In the trial of the case now before us, an official of

Depository Trust testified that on December 11, 1986, defendant

failed to appear for a state court deposition scheduled to be held

in Lakeland, Florida. Defendant, who lived in Fort Lauderdale, had

objected to traveling to Lakeland, some distance from his home.

The Depository Trust official further testified that on October 12,

1987, defendant filed an affidavit in the state court in which he

gave his version of what had happened to the dividend checks in

early 1986.

This witness also testified, without specificity, that

defendant had failed to appear for depositions on other occasions.

In addition, the witness discussed other events that occurred

before November 7, 1986, which were admissible only as to the tax

violation counts. The official also identified a number of

documents that defendant had produced during the course of the

civil suit. Finally, the witness described the garnishment

proceeding on the defendant's bank account at the Meritor Bank,

which yielded approximately $10,000.

In its brief, the government recognizes that to establish bank

fraud in violation of 18 U.S.C. § 1344,1 the prosecution "must

1
18 U.S.C. § 1344 reads:

Whoever knowingly executes, or attempts to execute, a
scheme or artifice—
establish that the defendant engaged in or attempted to engage in

a scheme or artifice to defraud a financial institution, and that

the defendant acted knowingly." It is not disputed that Depository

Trust is a financial institution within the ambit of 18 U.S.C. §

1344.

The government contends that there is sufficient evidence from

which the jury could conclude defendant committed bank fraud. The

bases of the government's position are that Depository Trust had a

claim against defendant for $486,000; that the answer and

affidavit defendant filed in the civil suit contained falsehoods;

and that defendant delayed final resolution of the suit by

obstructing discovery. In addition, we may also assume that after

November 6, 1986, defendant had control of the funds at Barclays

Bank and thus could have paid the debt owed Depository Trust, but

did not.

At the conclusion of the government's evidence, defendant

moved for acquittal on the bank fraud count. The trial judge

denied the request stating: "Well [Depository Trust's lawsuit] in

itself, would not be enough, but a jury question is formed as to

whether or not the dealings in November of '87 with regard to

transferring funds to [Euro International] and Venture Funding and

(1) to defraud a financial institution; or

(2) to obtain any of the moneys, funds, credits,
assets, securities, or other property owned by, or
under the custody or control of, a financial
institution, by means of false or fraudulent
pretenses, representations, or promises;

shall be fined not more than $1,000,000 or imprisoned
not more than 30 years, or both.
so forth, the jury can decide whether or not any of those funds

were [Depository Trust] funds."

The trial judge was referring to a consolidation of a number

of corporations through the exchange of stock and notes. The

companies included Venture Funding, Ltd. into which R. Mueller &

Sons had merged. All of the corporations received stock in a new

entity, Euro International. Apparently, no cash was involved in

these transactions, and significantly, on appeal the government

does not argue that any of the $486,000 due Depository Trust was

traced to these mergers.

As to the bank fraud count, therefore, the record establishes

only that during the pendency of a civil suit in state court for

the recovery of money due and owing, defendant delayed the ultimate

entry of judgment by filing a false and misleading answer and

affidavit, and slowed discovery.

As this Court explained in United States v. Falcone, 934 F.2d

1528, 1539 (11th Cir.1991), section 1344 covers two distinct types

of bank fraud: subsection (a)(1) outlaws schemes to defraud

federally insured financial institutions and subsection (a)(2)

prohibits schemes to obtain funds from such institutions by means

of false or fraudulent pretenses, representations, or promises.

Because defendant did not obtain funds from Depository Trust, only

subsection (a)(1), banning schemes to defraud, is pertinent to this

case.

The courts have traditionally been wary of defining fraud for

fear of creating opportunities for, or encouraging the creation of,

dishonest schemes that lie outside the definition. Consequently,
case law on fraud is highly fact-bound and broad statements must be

read in context.

The government has cited two cases in support of its position,

but we do not find them persuasive. For example, in United States

v. Goldblatt, 813 F.2d 619, 624 (3d Cir.1987), the court of appeals

explained that fraud is measured by determining whether the scheme

"demonstrated a departure from fundamental honesty, moral

uprightness, or fair play and candid dealings in the general life

of the community." In that case, the defendant, claiming money

from a bank, was convicted of covering up the relevant fact that

the withdrawal of his funds had been made by his son.

In United States v. Solomonson, 908 F.2d 358, 363 (8th

Cir.1990), the Court observed: "[A]ctions that have the effect of

delaying a complaint, making apprehension less likely, or giving a

false sense of security to the victim can be considered part of a

scheme to defraud." That case is of little help here because

Depository Trust, the victim, was aware that it had been denied

funds due it and had filed suit to recover them.

The parties have not provided us with authorities analogous to

the facts presented here. However, several district court cases

have held that the mail fraud statute does not extend to false

statements by attorneys in the context of pending litigation.

McMurtry v. Brasfield, 654 F.Supp. 1222, 1225 (E.D.Va.1987)

(letters and affidavit mailed in custody dispute not mail fraud);

See also Paul S. Mullin & Assocs., Inc. v. Bassett, 632 F.Supp.

532, 540 (D.Del.1986) (suggestion that attorney's actions could be

mail fraud was "absurd"); Spiegel v. Continental Ill. Nat. Bank,
609 F.Supp. 1083, 1089 (N.D.Ill.1985), aff'd 790 F.2d 638 (7th

Cir.1986) (correspondence concerning issue in pending litigation

not mail fraud). These courts indicated that the appropriate

remedy was notification of disciplinary authorities, or application

for sanctions in the civil litigation. Because the bank fraud

statute is modeled on the wire and mail fraud statutes, see

H.R.Rep. No. 1030, 98th Cong., 2d Sess. 377, reprinted in 1984

U.S.C.C.A.N. 3182, 3519, a similar standard should apply here.

It is highly unlikely that Congress intended the bank fraud

statute to cover the situation before us. First, Depository Trust

had no greater rights to the liquidating dividends than any other

shareholder. It would be incongruous to extend the weapon of

criminal penalties to Depository Trust when others in the same

situation were not granted such rights.

If the government believed that the defendant's conduct in the

civil suit merited criminal prosecution, the perjury statute would

have been available. Unlike the crime of perjury, which extends to

all litigants, applying the bank fraud statute here, as the

government would have us do, would benefit only a limited class of

litigants. We find nothing in the language of the bank fraud

statute to create such sweeping protection for banks in the context

of civil suits.

Nor do we find any indication that Congress intended to create

such a basic interference with established norms in civil

litigation as is urged here. Permitting the government to prevail

on its theory would mean that a bank suing on a note could threaten

the obligor with criminal sanctions if he delayed payment, although
a similar suit by a non-financial institution would have no such

ramifications. The state court has ample means to enforce

discovery procedures and invoke appropriate sanctions against

offending parties—even when, as here, the litigant proceeded pro

se. Damages for undue delay and obstruction of litigation, after

all, may be imposed in civil proceedings.

We are persuaded that there was insufficient evidence on which

a jury could find a violation of the bank fraud statute in this

case, and accordingly, we direct the entry of judgment of acquittal

on count two. See Burks v. United States, 437 U.S. 1, 16-18, 98

S.Ct. 2141, 2149-51, 57 L.Ed.2d 1 (1978) (double jeopardy bars

retrial after appellate court determines evidence at trial was

insufficient); United States v. Baptista-Rodriguez, 17 F.3d 1354,

1369 (11th Cir.1994); United States v. Khoury, 901 F.2d 948, 961

(11th Cir.1990).

V.

Because the conviction on count two is vacated, the case will

be remanded to the district court for resentencing on the remaining

counts. See United States v. Young, 953 F.2d 1288, 1290 (11th

Cir.1992). However, there are a few matters that we must address

first. The district court ordered defendant to make restitution

based on the loss incurred by Depository Trust. Because the

defendant's conviction for bank fraud is vacated, the order for

restitution can no longer stand. Thus, the government's

cross-appeal as to the restitution portion of the sentence is moot.

Defendant also asserts that the district court erred in

sentencing him under the 1988 sentencing guidelines, the guidelines
in effect the year his offense was completed, rather than the 1994

Sentencing Guidelines, the ones applicable for the year he was

sentenced. Defendant argues that because of changes in the

computation of the tax loss used to determine his base offense

level, he received a higher sentence under the 1988 guidelines than

he would have received under the 1994 guidelines.

18 U.S.C. § 3553(a)(4)(A) provides that sentencing should

ordinarily be made pursuant to the guidelines "that are in effect

on the date the defendant is sentenced." However, because

calculation under 1994 guidelines would have resulted in a longer

sentence, the government contends that it was necessary to use the

1988 version. See United States v. Lance, 23 F.3d 343, 344 (11th

Cir.1994) (noting ex post facto implications).

The defendant's sentence was based on "tax loss." Under the

1988 guidelines, tax loss included interest to the date of the

filing of the indictment. The defendant's total tax loss was

$1,134,215.03, which under the 1988 guidelines, corresponded to a

base offense level of 16. The 1994 guidelines' definition of "tax

loss" excludes interest, but part of the pertinent calculation

involves the use of "unreported gross income."2 The defendant

interprets this term to mean "adjusted gross income." We reject

that construction of the guideline and read it literally to apply

to unreported gross income. In any event, the government insists

2
U.S.S.G. 2T1.1(c)(1)(A) (1994) reads:

If the offense involved filing a tax return in which
gross income was underreported, the tax loss shall be
treated as equal to 28% of the unreported gross income
... unless a more accurate determination of the tax
loss can be made.
that a more accurate determination was made.

The record on this point is less than specific, but because

the case must be remanded for resentencing, the parties may

recalculate the sums at stake and if any disagreement remains,

submit the matter to the sentencing judge for resolution.

The district court also ordered that if defendant served his

full prison sentence, his fine would be waived. We fail to find,

nor did the district court provide, any support for this unusual

contingency.

The sentencing guidelines call for the imposition of fines in

all cases, with limited exceptions for defendants who are unable,

and not likely to become able, to pay all or part of a fine, or for

those whose dependents would be unduly burdened. U.S.S.G. § 5E4.2

(1988); U.S.S.G. § 5E1.2 (1994). 18 U.S.C. § 3572 specifies the

factors to be considered in imposing a fine. There is no provision

in the statute or the guidelines for the expiration of a fine based

on a defendant's service of his full term of incarceration. That

portion of the sentence must therefore be deleted.

Accordingly, the judgments of convictions on counts one, three

and four are AFFIRMED. The conviction on count two is REVERSED,

and judgment of acquittal on that count must be entered in favor of

the defendant. The case is REMANDED for resentencing.