U.S. v. Grosz, 94-10922

• Decision Date: 22 February 1996
• Docket Number: No. 94-10922,94-10922
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph GROSZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1318

76 F.3d 1318

UNITED STATES of America, Plaintiff-Appellee, v. Joseph GROSZ, Defendant-Appellant.

No. 94-10922.

United States Court of Appeals, Fifth Circuit.

Feb. 22, 1996.

Elliot Samuels, Milner, Goranson, Sorrels, Udashen & Wells, Chicago, IL, George R. Milner, Milner, Goranson, Sorrels, Udashen & Wells, Dallas, TX, for appellant.

Elizabeth D. Collery, David Frank, Ellen Meltzer, U.S. Dept. of Justice, Crim. Div., Washington, DC, Paul E. Coggins, U.S. Atty., Dallas, TX, for appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before REAVLEY, JOLLY and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this case, involving crimes of bank fraud, we primarily consider Joseph Grosz's contention that the district court violated the Speedy Trial Act, 18 U.S.C. § 3161-3174, by allowing 354 non-excludable days to elapse between the final disposition of Grosz's interlocutory appeal and the filing of his motion to dismiss. The crucial question is whether the proceeding conducted four days before trial, relating to Grosz's pending motion in limine, constituted a hearing within the meaning of the Act. We hold that the court did in fact conduct a hearing. Thus, the 354 days in question are properly excludable from calculation under the Speedy Trial Act. As to the other issues raised by Grosz, including that various instances of prosecutorial misconduct deprived him of a fair trial and that his conspiracy conviction is barred by double jeopardy, we find them meritless. Accordingly, we affirm Grosz's convictions.

I

Grosz was a commercial lending officer for San Jacinto Savings Association ("San Jacinto"), located in Houston, Texas. James P. McClain was a Texas businessman involved in real estate. In late 1984 or early 1985, during a flight to Chicago on McClain's private plane, Grosz and McClain devised a scheme jointly to purchase control of a Chicago savings and loan.

In order to generate funds to purchase the savings and loan in accordance with their plan, Grosz helped McClain to obtain a loan from People's Heritage Federal Savings and Loan Association ("People's") through a series of related transactions ("Plano/Flower Mound II Transactions"). In pertinent part, Grosz, acting in his capacity as a lending officer for San Jacinto, arranged for San Jacinto to release a second lien it held on forty-three acres of undeveloped land in Plano, Texas, to subordinate a lien it held to a People's lien, and to waive its rights under an agreement that would have entitled San Jacinto to receive $1.5 million from McClain at the closing of one of the transactions. San Jacinto did not receive any consideration in return for these actions. Grosz, however, received from McClain $1 million of the proceeds of People's loan. McClain also provided to Grosz $600,000 of his profits from two "land flip" transactions ¹ involving San Jacinto ("Bedford and Flower Mound I Transactions").

Shortly after the Plano/Flower Mound II Transactions, McClain decided that he no longer wanted to own or control a savings and loan. McClain asked Grosz to return half of the money. The two men ultimately agreed that Grosz would return $600,000 of the $1.6 million diverted to Grosz. Grosz actually paid McClain only $360,000 of this amount through two checks, one for $210,000 dated September 26, 1986, and the other for $150,000 dated December 9, 1987. ²

II

Grosz was charged on December 11, 1991 in a twelve-count indictment for the offenses of conspiracy to commit bank fraud, bank fraud, unlawful receipt of gifts for procuring loans, misapplication of loan funds, wire fraud, and aiding and abetting the commission of these offenses. He was arraigned on January 16, 1992. Grosz's counsel filed seventeen pretrial motions on January 27, including a motion to dismiss on double jeopardy grounds and a motion in limine to exclude evidence of subsequent financial conditions and events. The government responded to these motions on February 3. On May 7, the district court held the first pretrial conference. The court ruled orally on seven of Grosz's motions. The court also entered an order denying Grosz's double jeopardy motion and one other motion. Finally, the court stated that it was going to keep the remaining motions, including the motion in limine, "under advisement" pending resolution of Grosz's interlocutory appeal from the denial of his double jeopardy motion.

This court affirmed the district court's denial of Grosz's double jeopardy motion in an unpublished opinion. United States v. Grosz, 977 F.2d 577 (5th Cir.1992), cert. denied, 507 U.S. 921, 113 S.Ct. 1284, 122 L.Ed.2d 676 (1993). The interlocutory appeal formally concluded on March 4, 1993. The district court next took action on November 15, 1993, more than eight months later, when it denied one of seven pending motions without a hearing. Between that day and March 2, 1994, the court ruled on five of the remaining six motions without conducting a hearing on any of them. Grosz filed a motion to dismiss the indictment for pre-indictment delay on February 22, 1994. On March 3, the district court held the second pretrial conference, at which it granted Grosz's pending motion in limine after a brief exchange with an attorney for the government. Although present in the court at that time, Grosz's counsel was not addressed by the district court until after the court had ruled on the motion in limine. Grosz filed a motion to dismiss for a violation of the Speedy Trial Act on March 8. The court denied this motion on March 11.

Grosz chose not to testify at trial. Grosz's counsel suggested that McClain, who was testifying under a plea agreement, was fabricating his testimony to assist the government. In opening and closing arguments, Grosz's counsel maintained that the $600,000 that Grosz received from McClain was a loan made "in connection with investments that Mr. McClain wanted to do with Mr. Grosz." When the "investments" failed to materialize, counsel argued, Grosz returned a substantial portion of the money to McClain.

Grosz's counsel also argued that the $1 million payment was for "consulting work" that Mr. Grosz did "in connection with a real estate transaction involving Mr. McClain." Grosz's counsel did not introduce any evidence of a consulting agreement. An accountant testified on behalf of Grosz that he entered the money on the books of Mortgage & Equity Resources, a Chicago real estate brokerage owned by Grosz and his wife, as a "commission." Grosz also denied that San Jacinto received no benefit in return for the various rights it waived in connection with the Plano/Flower Mound II Transactions. He produced witnesses to testify to that effect.

Grosz was convicted of conspiring to commit bank fraud (Count 1); bank fraud (Count 10); and unlawful receipt of gifts for procuring loans (Counts 11 and 12). Counts 10 through 12 involved the Plano/Flower Mound II Transactions. Grosz was acquitted of the other eight counts on which he was indicted, all relating to the Bedford and Flower Mound I Transactions. The court sentenced him to five years' imprisonment on the conspiracy count, to be followed by concurrent five-year terms of probation on the remaining three counts of conviction. Grosz was also ordered to pay restitution in the amount of $1,600,000 and special assessments.

III

Grosz first contends that the district court should have dismissed his indictment based on a violation of the Speedy Trial Act because 354 non-excludable days elapsed between the final disposition of his interlocutory appeal and the filing of his motion to dismiss (March 5, 1993, to February 21, 1994). Specifically, Grosz asserts that an exchange in open court, shortly before trial, between the district judge and a government attorney concerning Grosz's pending motion in limine did not constitute a hearing triggering an exclusion of the 354 days under 18 U.S.C. § 3161(h)(1)(F). This court reviews the factual findings supporting a Speedy Trial Act ruling using the clearly erroneous standard and the legal conclusions de novo. United States v. Tannehill, 49 F.3d 1049, 1051 (5th Cir.) (citation omitted), cert. denied, --- U.S. ----, 116 S.Ct. 167, 133 L.Ed.2d 109 (1995).

A

"The Speedy Trial Act is designed to ensure a federal defendant's Sixth Amendment right to a speedy trial, and to reduce the danger to the public from prolonged periods of the defendant's release on bail." United States v. Johnson, 29 F.3d 940, 942 (5th Cir.1994). It requires that a defendant be tried within seventy days of indictment or of the day the defendant first appears before the judge or magistrate, whichever is later. 18 U.S.C. § 3161(c)(1) (1994). If more than seventy days pass between this date and the trial, the "indictment shall be dismissed on motion of the defendant." 18 U.S.C. § 3162(a)(2) (1994).

Certain delays are excluded from this calculation under section 3161(h). Section 3161(h)(1)(F) ("Subsection F") excludes "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." 18 U.S.C. § 3161(h)(1)(F) (1994). "Once a hearing has been held on a motion and all necessary additional materials submitted to the court, or once a motion not requiring a hearing is filed along with necessary supporting materials, § 3161(h)(1)(J) limits the excluded period to thirty days." United States v. Bermea, 30 F.3d 1539, 1566 (5th Cir.1994) (citing Henderson v. United States, 476 U.S. 321, 329, 106 S.Ct. 1871, 1876, 90 L.Ed.2d 299 (1986)), cert. denied sub nom., Rodriguez v. United States, --- U.S. ----, 115 S.Ct. 1113, 130 L.Ed.2d 1077 (1995), and cert. denied sub nom., Garza v. United States, --- U.S. ----, 115 S.Ct. 1825, 131 L.Ed.2d 746 (1995).

The Supreme Court has established that Subsection F excludes "all time between the filing of a motion and the conclusion of the hearing on that motion,...