43 F.3d 1298 (9th Cir. 1995), 93-50586, United States v. Mende

Docket Nº:93-50586.
Citation:43 F.3d 1298
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Milton Zucker MENDE, Defendant-Appellant.
Case Date:January 03, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1298

43 F.3d 1298 (9th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Milton Zucker MENDE, Defendant-Appellant.

No. 93-50586.

United States Court of Appeals, Ninth Circuit

January 3, 1995

Argued and Submitted Nov. 4, 1994.

Page 1299

[Copyrighted Material Omitted]

Page 1300

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.

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After a brief discussion, the court denied the motion for mistrial, but invited defense counsel to request an additional curative jury...

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