United States v. Timothy E. Graham ( 1996 )

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No. 95-3625
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota
Timothy Edward Graham, *
*
Appellant. *
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Submitted: May 16, 1996
Filed: October 15, 1996
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Before McMILLIAN, FAGG and BOWMAN, Circuit Judges.
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McMILLIAN, Circuit Judge.
Timothy Edward Graham appeals from an amended judgment entered in the
United States District Court1 for the District of Minnesota, United States
v. Graham, No. 4-93-134 (D. Minn. Oct. 5, 1995) (amended judgment), which
followed our remand with directions in an earlier appeal. Id., 60 F.3d
463, 469 (8th Cir. 1995) (Graham). For reversal, defendant now argues that
the district court (1) erred in denying his motion for a new trial and (2)
erred in permitting the government to elect which of two multiplicitous
counts to dismiss, in accordance with our directions on remand. For the
reasons discussed below, we affirm.
1
The Honorable David S. Doty, United States District Judge for
the District of Minnesota.
I.
The underlying facts of this case are set forth in our prior opinion.
60 F.3d at 465-66. The following is a brief summary of the factual and
procedural background. Defendant is a former attorney who owned an
undivided one-half interest in a series of apartment buildings referred to
as the Megra Properties. In 1991, a judgment creditor of defendant filed
a judgment lien against the Megra Properties and received a writ of
execution. On November 26, 1991, the day before a court-ordered sheriff's
sale of the Megra Properties was to take place, defendant filed for Chapter
11 bankruptcy,2 thus preventing the sale and forcing the judgment creditor
to become a bankruptcy creditor. Defendant then failed to disclose in his
schedules A and B his interest in the Megra Properties. Defendant took the
position in the bankruptcy proceedings that he had transferred his interest
in the Megra Properties to an irrevocable trust in his son's name on
December 28, 1989, more than one year before his bankruptcy filing. On
three separate occasions, when questioned in the presence of his creditors,
defendant claimed that he had transferred his interest in the Megra
Properties to his son's irrevocable trust on December 28, 1989. Defendant
provided a document which he claimed was the original trust document
reflecting the December 28, 1989, transfer of interest.
On August 25, 1993, defendant was charged with one count of
concealing assets in a bankruptcy case (Count I) and three separate counts
of knowingly and fraudulently making a false statement in a bankruptcy case
(Counts II, III, and IV), all in violation of 18 U.S.C. § 152. Defendant
moved to dismiss two of the three false statement counts on the ground that
they were multiplicitous. The district court denied his motion. The case
went to trial in
2
The bankruptcy court later converted the case to a Chapter 7
proceeding.
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December 1993. Evidence presented at trial proved that the trust document
upon which defendant had relied was not created until 1991. Defendant was
found guilty on Counts III and IV, each for knowingly and fraudulently
making a false statement in the bankruptcy case. He was sentenced to 30
months on each count, to run concurrently. He appealed from the judgment
and argued, among other things, that the district court had erred in
denying his motion to dismiss two of the three false statement counts. In
an opinion dated July 14, 1995, we agreed with defendant's multiplicity
argument and reversed and remanded on that limited basis. We instructed
the district court as follows: "Graham's convictions are reversed and
vacated. This case is remanded to the district court with directions to
order the government to elect which § 152 count of conviction it wishes to
leave in effect, after which the district court must resentence the
defendant." Graham, 60 F.3d at 469.
Following our limited remand, the government moved to dismiss Count
III of the indictment, and the district court granted the motion on
September 12, 1995. On October 2, 1995, defendant moved in the district
court for a new trial raising for the first time the argument that the
district court had erred in failing to instruct the jury that "materiality"
is an element of a § 152 false statement offense. The district court
denied the motion. United States v. Graham, No. 4-93-134 (D. Minn. Oct.
5, 1995) (order). The district court sentenced defendant on the remaining
count (Count IV) to one 30-month prison term, the same sentence that the
district court had originally imposed concurrently on each of Counts III
and IV. The district court entered an amended judgment, and defendant
appealed.
II.
Defendant first argues that the district court erred in denying his
motion for a new trial on the ground that the jury
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should have been instructed on "materiality" as an element of the offense.
He maintains that materiality is an essential element of a § 152 false
statement offense under United States v. Gaudin, 115 S. Ct. 2310 (1995),
in which the Supreme Court held that the government must prove materiality
of the alleged false statement when a defendant is charged with violating
18 U.S.C. § 1001 (false statements or entries regarding a material fact
made to the United States). The district court denied defendant's motion
for a new trial on the ground, among others, that defendant's new trial
motion was procedurally barred in light of this court's limited remand.
Defendant argues in the present appeal that his motion for a new trial was
not procedurally barred because he "filed a motion for a new trial in a
timely fashion as measured from the point where the District Court ruled
on which count he would stand convicted of." Brief for Appellant at 7.
He further claims "[t]his was done in compliance with Rule 33 of the
Federal Rules of Criminal Procedure." Id.
Upon review, we hold that the district court did not err in denying
defendant's motion for a new trial as untimely filed. We therefore decline
to address the merits of defendant's argument. Rule 33 of the Federal
Rules of Criminal Procedure states that a motion for a new trial based on
any ground other than newly discovered evidence "shall be made within 7
days after verdict or finding of guilty or within such further time as the
court may fix during the 7-day period." Defendant's contention that his
new trial motion was timely filed under Rule 33 fails for two reasons.
First, under Rule 33, defendant had seven days after the jury's guilty
verdict to file his motion for a new trial or to obtain an extension of
time in which to file. Defendant did neither during the seven days after
the jury reached its verdict.3 Moreover, our
3
Indeed, United States v. Gaudin, 115 S. Ct. 2310 (1995),
which provided the basis for defendant's new trial theory, was
decided on June 19, 1995, eighteen months after the trial in the
present case. We note that our holding today does not prejudice
defendant's right
to assert his argument based upon Gaudin in a petition brought
pursuant to 28 U.S.C. § 2255.
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limited remand conditionally vacated defendant's convictions -- or, in
other words, set aside the judgment -- for the purpose of allowing the
government to elect which count to dismiss and which count to "leave in
effect." Graham, 60 F.3d at 469. We did not set aside the jury's verdict
or findings of guilt. Therefore, our limited remand did not impact the
operation of Rule 33 in the present case. Second, even if we were to agree
with defendant's position (which we do not) that his rights under Rule 33
were renewed at "the point where the District Court ruled on which count
he would stand convicted of," Brief for Appellant at 7, his motion would
still have been untimely. The district court's order was entered on
September 12, 1995; defendant filed his motion for a new trial on October
2, 1995, well over seven business days later.
III.
Defendant next argues that the district court erred in failing to
require the government to elect Count IV for dismissal. On remand, the
government moved to dismiss Count III. The district court granted the
government's motion and sentenced defendant on Count IV. Defendant argues
that, consistent with cases from this and other circuits, the proper count
to dismiss is the one that "creates" the multiplicity or, in other words,
the count based upon acts or events occurring later in time. In the
present case, the conduct charged in Count IV occurred later in time.
Upon review, we hold that the district court's grant of the
government's motion to dismiss Count III of the indictment was in complete
accordance with our prior opinion in Graham, 60 F.3d at 469 ("[t]he proper
course is to remand this case for resentencing and direct the government
to elect the false statement count that it wishes to leave in effect").
Therefore, we uphold the district
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court's dismissal of Count III upon the government's election under the
law-of-the-case doctrine, particularly because defendant has not shown that
he has suffered any prejudice resulting from the decision to leave Count
IV in effect. See United States v. Bartsh, 69 F.3d 864, 866 (8th Cir.
1995) (a decision in a prior appeal must be followed in a later proceeding
unless a party introduces substantially different evidence or the prior
decision is clearly erroneous and works a manifest injustice), quoting
United States v. Callaway, 972 F.2d 904, 905 (8th Cir. 1992) (per curiam);
United States v. Rosnow, 9 F.3d 728, 730 (8th Cir. 1993) (per curiam)
(same), cert. denied, 115 S. Ct. 120 (1994).
IV.
For the foregoing reasons, the amended judgment of the district court
is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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