318 F.3d 348 (1st Cir. 2003), 02-1583, U.S. v. Colon-Munoz

Docket Nº:02-1583.
Citation:318 F.3d 348
Party Name:UNITED STATES of America, Appellee, v. Ramiro L. COLON-MUNOZ, Defendant, Appellant.
Case Date:February 05, 2003
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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318 F.3d 348 (1st Cir. 2003)

UNITED STATES of America, Appellee,


Ramiro L. COLON-MUNOZ, Defendant, Appellant.

No. 02-1583.

United States Court of Appeals, First Circuit

February 5, 2003

Heard Dec. 2, 2002.

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Peter Goldberger for appellant.

Nelson Perez-Sosa, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Sonia I. Torres-Pabon, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, LIPEZ, and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

This is the third appeal that Ramiro L. Colon-Munoz ("Col6n") has brought before us in response to his December 1996 convictions on multiple federal charges relating to events that occurred in 1987 and 1988 when he was president of the Ponce Federal Bank (the "Bank") in Puerto Rico. As a result of the first appeal, we affirmed on October 1, 1999 his convictions for conspiracy, misapplication of bank funds, bank fraud, and related counts, but ordered a judgment of acquittal on certain other counts and remanded for re-sentencing on the affirmed convictions. United States v. Colon-Munoz ("Colon-Munoz /"), 192 F.3d 210 (1st Cir. 1999), cert. denied, 529 U.S. 1055, 120 S.Ct. 1559, 146 L.Ed.2d 463 (2000).

Following remand, Colon filed a motion on September 13, 2000, under Rule 33 of the Federal Rules of Criminal Procedure, for a new trial on the basis of newly discovered evidence. No action was taken on the new trial motion or the re-sentencing for over eighteen months. Accordingly, in early 2002, over five years after his conviction, Colon remained free on bail and without a sentence.

On April 8, 2002, the Judicial Council of this circuit issued an order pursuant to 28 U.S.C. § 332(d)(1) (1994). This order reflected the Judicial Council's concern with

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the backlog of cases that had developed in the docket of the district court judge who presided over the Colon-Munoz trial and had resumed authority over the case following this court's remand. The Judicial Council's order, which was not concerned in particular with the Colon-Munoz case, adopted several temporary measures to ameliorate the problem. One such measure was the creation of a three-judge committee of the district court, authorized for a limited period to transfer criminal cases that had been pending before the district judge in question for more than two years, and civil cases pending for more than three years, where the committee determined that this transfer would expedite resolution.

On April 12, 2002, the committee entered an order directing that twenty-four long-pending criminal cases on the docket of the district judge in question, including the Colon-Munoz case, be randomly reassigned to other judges. Accordingly, this case was transferred to another district judge. Colon moved to retransfer the case back to the original trial judge. On April 24, 2002, Judge Juan M. Perez-Gimenez, the successor judge, denied both the motion to retransfer and the motion for a new trial. On May 14, 2002, Judge Perez-Gimenez re-sentenced Colon, imposing an amended sentence of sixteen months' imprisonment in lieu of the sentence of twenty-one months that had been imposed following the 1996 convictions, and setting a reporting date of May 17, 2002.

Colon immediately filed a notice of appeal and sought an emergency stay to remain free on bail pending appeal. This court temporarily deferred Colon's reporting date in order to address the emergency motion. There were no disputes relating to Colon's dangerousness or risk of flight. See 18 U.S.C. § 3143(b)(1)(A) (1994). Instead, the focus of the emergency stay request was the likelihood that a substantial question of law raised would result in an order for a new trial. Id. § 3143(b)(1)(B). After a preliminary consideration of the merits of the pending appeal, in particular the propriety of reassignment of the case for resentencing by a judge who did not preside over the trial, we denied the motion for stay pending appeal and vacated the temporary stay entered on May 17, 2002. United States v. Colon-Munoz ("Colon-Munoz II"), 292 F.3d 18 (1st Cir. 2002).

Colon now appeals the decision of Judge Perez-Gimenez denying the motion to retransfer and the motion for a new trial, and the amended sentence itself. With regards to the latter, Colon avers that the sentencing court erred in adding a four-level upward adjustment to his sentence under U.S.S.G. § 3B1.1(a) for his aggravating role in the offense, and claims that, in applying the 2001 Edition of the Sentencing Guidelines Manual (the "Guidelines") to crimes that were committed in 1988, the sentencing court violated the Ex Post Facto Clause. See U.S. Const. Art. I, § 9. Concluding that Judge Perez-Gimenez ruled correctly on the motions before him and the resentencing, we affirm.

I. The Underlying Criminal Case

As the factual background of the case was set forth in great detail in both the appeal of Colon's co-defendant, Jose Blasini-Lluberas, United States v. Blasini-Lluberas, 169 F.3d 57 (1st Cir. 1999), and Colon's initial direct appeal, Colon-Munoz I, we offer here a limited statement of the facts giving rise to the original convictions. In discussing the motion for a new trial, we describe in greater detail trial testimony relevant to that motion.

On July 15, 1987, Colon and his wife purchased a farm known as "La Esmeralda" from thirteen members of the Usera

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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. As security for the balance of the purchase price, Colon granted the Usera family a mortgage on the property.

Following the purchase of the farm, but prior to the due date of the outstanding $472,260 obligation, four members of the Usera family approached Colon requesting money to satisfy loans unrelated to the sale of the farm.1 Since Colon was, at this time, the Bank, he sent the Useras to see Blasini, then executive vice president of the Bank, and ordered Blasini to assist each of them in securing a loan. Blasini authorized the loans, ranging from $11,000 to $20,000, subject to a standard rate of interest and a due date. Each family member executed partial assignments of their mortgage interests in the farm as security for the loans.

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 Garcia-Gomez ("Garcia"), went to the Bank and demanded payment of her share of the purchase price. Each of the thirteen members of the Usera family owned a pro rata share of the purchase price according to each member's inheritance share. Garcia owned the largest share of the inheritance (42.8%), and was entitled to $200,000 of the remaining purchase price. Wendell Colon, Colon's brother and an attorney for the Bank, told Garcia that the money was not available. Garcia then asked for $100,000, and Blasini brought her to a loan officer and instructed the officer to disburse a $100,000 loan to her. The loan application stated that the collateral for the loan was a partial assignment of Garcia's mortgage interest in the farm, and that the purpose of the loan was the purchase of an apartment. On the application, directly above Blasini's signature, Blasini wrote "discussed and agreed to by attorney R.L. Colon." At trial, Garcia testified that, although she signed the 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 with two sets of checks from his personal account. The first set paid off the bank loans; the second set paid each family member the balance of what he or she was owed. They then signed a cancellation of the mortgage. When the checks were presented at the Bank for immediate payment, Colon's personal account had insufficient funds to cover the checks. Blasini authorized a bank officer to substitute official bank checks for Colon's personal checks, and the bank checks were debited against Colon's personal checking account which, at the close of business on May 13, 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.

Colon had applied for this loan a month before, 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

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and his wife prepared a mortgage deed which stated 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 4 but was not actually disbursed until May 16, 1988, three days after the Useras released their mortgage on the farm. Two years later, in August 1990, Colon received a $615,500 severance package from Ponce Federal Bank which he used to pay off the balance of his loan from Royal Bank.

In 1995, Colon was indicted on multiple counts relating to these transactions. Subsequently, he was convicted at trial 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 from the loan transactions in question under 18 U.S.C. § 1006, one...

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