U.S. v. Mende, 93-50586

Decision Date03 January 1995
Docket NumberNo. 93-50586,93-50586
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Milton Zucker MENDE, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Thomas M. Kummerow, Seattle, WA, for defendant-appellant.

Mark C. Holscher, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: FLOYD R. GIBSON, * HUG, and POOLE, Circuit Judges.

FLOYD R. GIBSON, Senior Circuit Judge:

Milton Mende appeals his conviction and sentence for conspiracy, multiple counts of mail fraud, wire fraud, and money laundering. Mende alleges that the district court erred in three ways: failing to grant his motion for mistrial based on improper prosecutorial comments on his exercise of his Fifth Amendment privilege against self-incrimination; admitting evidence of his prior fraudulent conduct; and calculating his base offense level. We AFFIRM.

I. BACKGROUND

From 1984 until 1990, Mende and his co-conspirators, Robert Turman and Samuel Longo, organized and implemented a complex loan fee fraud scheme. Beginning in 1984, Mende created a series of worthless shell companies backed by millions of dollars in nonexistent assets. He used false documentation to deceive accountants into certifying that his companies were backed by millions of dollars which, in fact, did not exist.

Mende then sent out false financial packages and made phone calls to hundreds of prospective clients in order to solicit advance fees for nonexistent loans and loan guarantees. Based on these financial packages, which contained lists of fictitious assets, falsified financial statements, and a fictional company history, the conspirators convinced numerous clients to pay advance fees for loans that were never forthcoming or loan guarantees that were not honored on default.

Mende was charged in a forty-three count indictment and convicted of seven counts of mail fraud under 18 U.S.C. Sec. 1341 (1988), twelve counts of wire fraud under 18 U.S.C. Sec. 1343 (1988), four counts of money laundering under 18 U.S.C. Sec. 1957 (1988), and one count of conspiracy under 18 U.S.C. Sec. 371 (1988). The district court sentenced Mende to 151 months imprisonment. Mende appeals his conviction and sentence.

II. DISCUSSION
A. Prosecutorial Comments on Mende's Silence.

Mende first argues that during the government's rebuttal argument, the prosecutor impermissibly commented on Mende's failure to testify, thereby violating Mende's Fifth Amendment 1 privilege against self-incrimination. Throughout the course of the trial, the defense had characterized the government's evidence as a few nonrepresentative bad deals that the government had selectively presented. In response, the prosecutor reminded the jury that the defense had failed to present any evidence of prior successful business deals. Counsel for co-defendant Samuel Longo objected to the statement and moved for a mistrial on the grounds that this statement improperly commented on the defendants' failure to testify. Counsel for Mende joined in the motion for a mistrial. After a brief discussion, the court denied the motion for mistrial, but invited defense counsel to request an additional curative jury instruction on this issue. None was requested.

In Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965), the Supreme Court held that the self-incrimination clause of the Fifth Amendment "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." The test to determine the existence of a Griffin violation is "whether the language used was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify." United States v. Fleishman, 684 F.2d 1329, 1343 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982). We review potential Griffin violations de novo. United States v. Mares, 940 F.2d 455, 461 (9th Cir.1991); but see U.S. v. Hoac, 990 F.2d 1099, 1103-04 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1075, 127 L.Ed.2d 392 (1994).

There is a distinction between a comment on the defense's failure to present exculpatory evidence as opposed to a comment on the defendant's failure to testify. This Court has recognized that " 'a prosecutor may properly comment upon the defendant's failure to present exculpatory evidence, as long as it is not phrased to call attention to defendant's own failure to testify.' " United States v. Lopez-Alvarez, 970 F.2d 583, 595-96 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 504, 121 L.Ed.2d 440 (1992) (quoting United States v. Bagley, 772 F.2d 482, 494-95 (9th Cir.1985), cert. denied, 475 U.S. 1023, 106 S.Ct. 1215, 89 L.Ed.2d 326 (1986)). It is equally clear that " '[a] comment on the failure of the defense as opposed to the defendant to counter or explain the testimony presented or evidence introduced is not an infringement of the defendant's Fifth Amendment privilege.' " United States v. Castillo, 866 F.2d 1071, 1083 (9th Cir.1988) (quoting United States v. Dearden, 546 F.2d 622, 625 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 295, 54 L.Ed.2d 188 (1977)).

Viewed in its proper context, the prosecutor's comment in this case did not call attention to Mende's failure to testify. The comment instead addressed the defense's failure to produce any evidence of paid guaranties or any other prior successful business transactions in support of Mende's claim that the government had deliberately withheld evidence of his legitimate business activities in order to create the illusion of wrongdoing. This conclusion is supported by the language of the prosecutor's comment itself, which specifically mentioned the availability of subpoena power to call additional witnesses and reminded the jury that the defendant was in fact under no obligation to take the stand and testify.

B. Evidence of Mende's Prior Fraudulent Activities.

At a pretrial hearing, the government moved to allow introduction of evidence that one of Mende's co-defendants, Robert Turman, had been warned by a third party, Ed Bray, that Mende had been previously involved in a similar fraudulent scheme. At that point, the district court ruled that it would not allow this evidence, but invited the government to raise the issue again at trial.

Beginning with their opening statements and continuing throughout the course of the trial, Mende's co-defendants presented a lack of knowledge defense. Both denied any knowledge on their part that Mende's companies were fraudulent. Recognizing that Turman and Longo had placed their knowledge of Mende's fraudulent conduct at issue, the government renewed its motion. After entertaining arguments from counsel regarding the admissibility of Bray's statement, the district court then ruled that it would allow the jury to consider a portion of Bray's testimony. 2 This testimony was immediately followed by a limiting instruction. Mende argues that the district court abused its discretion in admitting Bray's testimony.

Federal Rules of Evidence Rule 403 allows the trial judge to exclude otherwise relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. 3 Mende maintains that the district court erred in failing to exclude this evidence. He argues that Bray's statement was of little probative value and that it severely prejudiced his defense by informing the jury that he had formerly engaged in the same type of fraudulent conduct for which he was accused. Rule 403, however, is " 'an extraordinary remedy to be used sparingly because it permits the trial court to exclude otherwise relevant evidence.' " United States v. Patterson, 819 F.2d 1495, 1505 (9th Cir.1987) (quoting United States v. Meester, 762 F.2d 867, 875 (11th Cir.), cert. denied, 474 U.S. 1024, 106 S.Ct. 579, 88 L.Ed.2d 562 (1985)). Under the terms of the rule, the danger of prejudice must not merely outweigh the probative value of the evidence, but substantially outweigh it. We review the district court's ruling under Rule 403 for abuse of discretion. United States v. Crespo de Llano, 838 F.2d 1006, 1018 (9th Cir.1987).

It is clear from the record that the district court carefully considered this issue, weighed the probative value against any potential prejudice to Mende, and...

To continue reading

Request your trial
72 cases
  • Munoz v. PHH Mortg. Corp., No. 1:08-cv-00759-DAD-BAM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 11, 2020
    ...remedy to be used sparingly." United States v. Monzon-Silva , 791 F. App'x 671, 672 (9th Cir. 2020)9 (quoting United States v. Mende , 43 F.3d 1298, 1302 (9th Cir. 1995) ), cert. denied , ––– U.S. ––––, 140 S. Ct. 2632, 206 L.Ed.2d 511 (2020) ; see also United States v. King , 713 F.2d 627,......
  • United States v. Christensen
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 25, 2015
    ...the appeal.”We routinely trust juries to follow limiting instructions when evidence is erroneously admitted. See United States v. Mende , 43 F.3d 1298, 1302 (9th Cir. 1995) (explaining that jurors are presumed to have “follow[ed] the district court's limiting instructions”). We similarly tr......
  • United States v. Christensen, s. 08–50531
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 25, 2015
    ...the appeal.”We routinely trust juries to follow limiting instructions when evidence is erroneously admitted. See United States v. Mende, 43 F.3d 1298, 1302 (9th Cir.1995) (explaining that jurors are presumed to have “follow[ed] the district court's limiting instructions”). We similarly trus......
  • Rienhardt v. Shinn
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • November 8, 2021
    ...for the prosecutor to address the defense's arguments.” Rhoades v. Henry, 598 F.3d 495, 510 (9th Cir. 2010); United States v. Mende, 43 F.3d 1298, 1301 (9th Cir. 1995) (“There is a distinction between a comment on the defense's failure to present exculpatory evidence as opposed to a comment......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT