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.