192 F.3d 210 (1st Cir. 1999), 98-1684, United States v. Colon-Munoz

Docket Nº:98-1684.
Citation:192 F.3d 210
Party Name:UNITED STATES, Appellee, v. RAMIRO L. COLON-MUNOZ, Defendant, Appellant.
Case Date:October 01, 1999
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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192 F.3d 210 (1st Cir. 1999)

UNITED STATES, Appellee,

v.

RAMIRO L. COLON-MUNOZ, Defendant, Appellant.

No. 98-1684.

United States Court of Appeals, First Circuit

October 1, 1999

Heard April 6, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

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Jorge E. Vega-Pacheco, Assistant United States Attorney, with whom Guillermo

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Gil, United States Attorney and Nelson Perez-Sosa, Assistant United States Attorney, were on brief for appellee.

Peter Goldberger, with whom Jan Armon, Ellen C. Brotman, and Pamela A. Wilk were on brief for appellant Colon.

G. Richard Strafer and Barbara Bergman on brief for National Association of Criminal Defense Lawyers, amicus curiae.

Before Lynch, Circuit Judge, Bownes, Senior Circuit Judge, and Lipez, Circuit Judge.

LIPEZ, Circuit Judge.

We consider in this appeal criminal convictions relating to a real estate transaction in Puerto Rico in the 1980s. The defendant, Ramiro L. Colon-Munoz, formerly President of Ponce Federal Bank, was convicted of misapplication of bank funds (five counts), bank fraud, making a false entry on a loan document, making a false statement on a loan application, fraudulently benefitting from a bank loan, and conspiracy. The real estate at issue, a farm called La Esmeralda ("the farm" or "La Esmeralda") was also forfeited. Colon now raises a variety of objections to the convictions and forfeiture, beginning with the claim that his indictment was invalid because of interim United States Attorney Guillermo Gil's participation before the grand jury pursuant to an unconstitutional judicial appointment. Colon also challenges the sufficiency of the evidence to support his convictions and claims that the forfeiture of La Esmeralda violated the Ex Post Facto Clause of the United States Constitution.

Although we conclude that Colon waived his challenge to the validity of the indictment, we agree that there was insufficient evidence to support his convictions on four of the five misapplication counts and the false statement count, and that the forfeiture of the real estate violates the Ex Post Facto Clause of the Constitution. We affirm the convictions on one count of misapplication, and on the counts of bank fraud, false entry, fraudulently benefitting from a bank loan, and conspiracy.

I. Background

We have already considered many of the issues at hand in the appeal of Colon's co-defendant, Jose Blasini-Lluberas. As the scheme at issue was set forth in great detail in our opinion in that case, United States v. Blasini-Lluberas, 169 F.3d 57, 60-62 (1st Cir. 1999), we offer here a limited statement of the facts which the jury could have found from its review of the evidence, supplemented by the specifics of Colon's involvement where necessary.

On July 15, 1987, Colon and his wife purchased La Esmeralda from thirteen members of the Usera family who had inherited the farm. Colon paid $83,340 at the closing and the balance of $472,260 was due nine months later on April 14, 1988.1 As security for the balance of the purchase price, Colon granted the Usera family a mortgage on the property.

Following Colon's purchase of the farm, but prior to the due date of Colon's outstanding $472,260 obligation, four members of the Usera family approached Colon requesting money.2 Each family member had a specific reason for requesting a loan but, generally speaking, the family members were seeking funds to satisfy obligations unrelated to the sale of the farm. Colon agreed to help them, sending the family members to see Blasini, then an executive vice-president of Ponce Federal Bank ("the bank"), and instructing him to assist each of them in securing a loan from the bank. As vice-president of the bank, Blasini was authorized to approve unsecured loans up to $50,000 and secured

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loans up to $100,000. Blasini authorized the loans, ranging from $11,000 to $20,000, subject to a standard rate of interest and a due date. None of the loan applications included a financial statement or credit history. Each family member, however, executed partial assignments of their mortgage interests in the farm as security for the loans. Although the partial assignments were signed by both Blasini and Colon, they were not included in the loan file. The stated purpose for the loans was personal; the means of repayment was the sale of a farm. Because the loans did not exceed $50,000, their approval did not require collateral as a matter of bank policy.

When Colon's debt to the Usera family came due on April 14, 1988, he was unable to satisfy his obligation. On April 19, 1988, another member of the Usera family, Consuelo Garc¡a-Gomez, went to the bank and demanded payment of her share of the purchase price. Consuelo Garc¡a-Gomez was entitled to $200,000, the largest share of the inheritance. Wendell Colon, Colon's brother, told Consuelo Garc¡a-Gomez that the money was not immediately available. She then asked for $100,000. Thereafter, Blasini brought Consuelo Garc¡a-Gomez to a loan officer and instructed the officer to disburse a $100,000 loan to her. The information in her loan application was provided to the loan officer by Blasini and the application stated that collateral for the loan was a partial assignment of Consuelo Garc¡a-Gomez's mortgage interest in the farm. The listed purpose of the loan was the purchase of an apartment. On the loan application, directly above Blasini's signature, Blasini wrote,3 "discussed and agreed to by attorney R.L. Colon."4 At trial Consuelo Garc¡a-Gomez explained that, although she signed loan documents to receive the $100,000, she did not go to the bank for the purpose of obtaining a loan and she never read the loan documents before signing them. She maintained that the $100,000 was partial payment of the money owed to her rather than a loan.

On May 13, 1988, Colon paid the balance of the purchase price of the farm to the Useras. Colon wrote two sets of checks from his personal account. The first set paid off the bank loans of Monserrate Usera, Ana Usera, Carmen Maduro, Vicente Usera and Consuelo Garc¡a-Gomez. He listed the appropriate amount of their outstanding debts, including the interest that had accrued, and named both the bank and the borrower as joint payees. The second set of checks paid each family member the balance of what he or she was owed. They then signed a cancellation of the mortgage.

When members of the Usera family presented the checks at the bank for immediate payment, Colon's personal account had insufficient funds to pay all of the checks. Blasini authorized a bank officer to substitute official bank checks for Colon's personal checks. The official bank checks were debited against Colon's personal checking account. At the close of business on May 13th, Colon's personal account was overdrawn by $122,930.

The following business day, May 16, Colon deposited $492,394 in his personal account from the proceeds of a $500,000 loan he obtained from the Royal Bank of Puerto Rico ("Royal Bank"). A month before, in April, Colon had applied for the loan, initially contacting the Vice President of Royal Bank by phone to discuss the possibility of such a loan. Notwithstanding the fact that in April the Useras still had a mortgage on the farm, Colon and his wife prepared a mortgage deed which stated

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that Royal Bank was granted a first mortgage on La Esmeralda. The mortgage deed was filed at the registry of deeds on April 19, 1988. However, in the financial documents submitted to Royal Bank, the Usera family's pre-existing first mortgage on the property was fully disclosed. The loan was approved on May 4th but was not actually disbursed until May 16th, three days after the Useras released their mortgage on the farm.

Two years later, in August of 1990, Colon received a severance package from Ponce Federal Bank in the amount of $615,500. With those monies, he paid off the balance of his loan from Royal Bank.

In 1995, Colon was indicted on multiple counts relating to these transactions. Following a trial, Colon was convicted on five counts of misapplication of bank funds under 18 U.S.C. § 657, one count of bank fraud under 18 U.S.C. § 1344, one count of false entry under 18 U.S.C. § 1006, one count of benefitting, directly or indirectly, from the loan transactions in question under 18 U.S.C. § 1006, one count of false statement under 18 U.S.C. § 1014, and one count of conspiracy under 18 U.S.C. § 371. The jury also returned a verdict of forfeiture as to Colon's interest in La Esmeralda under 18 U.S.C. § 982(a)(2).

Colon filed a post-trial motion for a judgment of acquittal under Fed. R. Crim. P. 29(c), challenging the sufficiency of the evidence and, for the first time, the validity of the indictment because of interim United States Attorney Guillermo Gil's participation before the grand jury. He argued that Gil's judicial appointment was unconstitutional and sought discovery on the circumstances of the appointment. The motion for discovery and the motion for a judgment of acquittal were denied.

Colon was sentenced to twenty-one months imprisonment followed by two years of supervised release. He was also fined $20,000 and his interest in La Esmeralda was forfeited.

II. The Appointment of the Interim United States Attorney

As noted, Colon raised for the first time in his motion for a judgment of acquittal a claim that Guillermo Gil's judicial appointment as the interim United States Attorney for the District of Puerto Rico was constitutionally invalid.5 Specifically, he maintained that 28 U.S.C. § 546(d), which allows the district court to appoint an interim United States Attorney...

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