U.S. v. Haese

• Decision Date: 07 December 1998
• Docket Number: No. 97-10307,97-10307
• Citation: 162 F.3d 359
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack Hutchins HAESE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 359

162 F.3d 359

UNITED STATES of America, Plaintiff-Appellee, v. Jack Hutchins HAESE, Defendant-Appellant.

No. 97-10307.

United States Court of Appeals, Fifth Circuit.

Dec. 7, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 15, 1999.

Ellen R. Meltzer, Washington, DC, Delonia Anita Watson, Dallas, TX, for Plaintiff-Appellee.

Timothy William Crooks, Fort Worth, TX, for Defendant-Appellant.

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

Before REYNALDO G. GARZA, JONES and DeMOSS, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

The appellant brings forth this appeal raising four issues: (1) whether he was denied effective assistance of counsel; (2) whether the district court erred in granting the government's Motion In Limine; (3) whether Haese was entitled to an evidentiary hearing based on his allegations of prosecutorial misconduct; and (4) whether the district court plainly erred in admitting testimony of the government's key witness in violation of 18 U.S.C. § 201(c)(2) because that testimony was obtained in exchange for a favorable plea agreement.

I. Factual and Procedural Background

Appellant, Jack Hutchins Haese ("Haese"), was Senior Vice President and Chief Lending Officer of Majestic Savings Association ("Majestic"), a federally insured financial institution, located in McKinney, Texas. Haese was responsible for analyzing problem loans, including those in default, and recommending workout transactions. Glen Hickman ("Hickman"), Majestic's president, and Joe Collins ("Collins"), the Majority owner of Majestic, consistently approved Haese's recommendations on problem loans. Haese, Hickman, and Collins were members of Majestic's commercial loan committee.

Mukesh Assomull ("Assomull") was employed by Craig Properties, a real estate brokerage investment company jointly owned by Assomull, David Craig and James Craig. Assomull was in charge of raising money for syndication and brokerage loans. Haese had earlier arranged a loan from Majestic for Assomull that involved property in Sherman Texas. In exchange for receiving the loan, Assomull used $1 million of the loan proceeds to purchase property that was accounted for as real estate owned on Majestic's books.

Assomull represented Paul Yarbrough, Jr. ("Yarbrough"), Terry Rine ("Rine") and William Malish ("Malish"), the holders of a promissory note that was secured by 105 acres of land in Arlington, Texas. The maker of the note was Arlington 157 Tenancy in Common ("Arlington 157"). Arlington 157 had purchased the property encumbered by the note in 1985 for $8.5 million. As of August 1987, Arlington 157 owed $5,725,000 on the note, but Yarbrough, Rine and Malish were willing to sell it at a discounted price of $3.8 million.

Graconco, Inc. ("Graconco"), a Texas corporation owned and controlled by Burl and Joe Gray, owned the Old Towne Plaza Shopping Center ("Old Towne"), a project financed by Majestic. During the summer of 1987, Graconco was in default on its debt obligation to Majestic on the Old Towne property.

In a memorandum to Haese dated August 26, 1987, Assomull outlined the benefits to Majestic of financing the sale of the Arlington 157 note. As Assomull explained, the note could be financed for $5.4 million, but purchased for $3.8 million, leaving $1.6 million in excess equity. He suggested to Haese that the excess funds could be used for Old Towne, or any other situation Haese might think would work. Assomull was aware that Haese was looking at similar proposals at this time, and that Haese had to be paid a bribe if he wanted Majestic to finance the sale of the note. In addition, Haese and Assomull discussed that the bribe would be paid by increasing the brokerage commission due Craig Properties from $100,000 to $200,000 and remitting half of it to Haese. The money in question was paid into a corporation called Olympic Systems, which was wholly owned by Haese and his wife.

On September 17, 1987, Haese sent a letter to Yarbrough, Rine and Malish, copied to Assomull, which stated that Majestic intended to finance the purchase of the Arlington 157 note. Haese, Hickman and Collins, on behalf of the commercial loan committee, approved the issuance of a $5.7 million loan to Graconco on September 26, 1987. The loan approval sheet provided that the discounted proceeds would be applied to the outstanding principal balance of Graconco's loan for Old Towne. On October 14-15, 1987, the loan to Graconco in the amount of $5.7 million was closed at Majestic's offices. At closing, Craig Properties received a commission check in the amount of $200,000 and it was deposited into its account at Texas American Bank in McKinney, Texas.

Raymond Kane ("Kane") was General Counsel at Majestic during most of 1987 and represented the association in various legal matters. In April 1987, Kane and Haese formed Triad Capital Group ("Triad") for the purpose of purchasing saving and loan associations. At the closing of the sale of the Arlington 157 note, James Craig and Haese met with Kane and tendered him a check for $100,000 from Craig Properties, payable to Triad. When Haese failed to provide Kane with a satisfactory explanation as to the origins of the $100,000, Kane decided to tear up the check. The next day, Haese explained to Kane that the money originated from a debt Assomull owed to Haese and that Assomull made out the check payable to Triad. Kane replied that any money Haese was owed by Assomull should not be paid to Triad, since there was no debt owed to the corporation and it looked "like a bribe." Kane advised Haese on several additional occasions that it would be improper to accept any payment from Assomull because it looked like a bribe.

A few days after the closing, Haese suggested that Assomull temporarily deposit his $100,000 payment in another account in order to disguise the source of the payment. On October 19, 1987, Assomull transferred the funds from Craig Properties into the account of Shalimar Properties, Inc., an inactive corporation owed by Assomull and the Craigs which held an account at Texas American Bank. Thereafter, Haese instructed Assomull to wire $100,000 from the Shalimar account to Union Bank ("Union") in San Antonio to the attention of Grant Hollingsworth ("Hollingsworth"), the President of Union, and to purchase a $100,000 certificate of deposit in Shalimar's name with the money.

On November 2, 1987, Haese sent a letter to Hollingsworth and requested that Union issue a $100,000 loan to Olympic Systems secured by Shalimar Properties' certificate of deposit. On November 3, 1987, Haese signed a promissory note and security agreement for a $100,000 loan to Olympic Systems from Union. James Craig pledged the Shalimar certificate of deposit as security for the loan.

On November 10, 1987, $95,000 of the proceeds of the loan were transferred to a checking account opened at Union in Olympic's name. The remaining $5,000 was wire transferred into the account of Jack and Wilma Haese at Murray Savings Association in Dallas, Texas. On December 29, 1987, the Shalimar Properties certificate of deposit was cashed and the proceeds used to repay the loan to Olympic.

On diverse dates between November, 1987 and September, 1988, checks totaling almost $70,000 made payable to either Haese or his wife were written on Olympic Systems account at Union and deposited into their personal accounts.

In order to prove its facts, the government relied upon two witnesses: Assomull, who testified pursuant to a plea agreement requiring his cooperation; and Kane, the former counsel for Majestic, who testified under a grant of immunity.

On January 23, 1992, after a jury trial in the United States District Court for the Northern District of Texas, Haese was convicted on one count of conspiracy to commit bank bribery, to unlawfully participate in a bank transaction, and commit money laundering in violation of 18 U.S.C. § 371; one count of bank bribery in violation of 18 U.S.C. § 215; one count of unlawful participation in a bank transaction in violation of 18 U.S.C. § 1006; and one count of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(I). On November 6, 1992, the district court sentenced Haese to a term of 33 months imprisonment, plus a term of supervised release of three years. Haese's trial counsel failed to perfect an appeal.

On April 22, 1995, Haese filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255, in which he alleged that (1) his counsel provided inadequate representation at trial and failed to file an appeal; and (2) the government engaged in prosecutorial misconduct by knowingly presenting perjured testimony and interfering with Haese's right to compulsory process. The magistrate judge, to whom Haese's motion was referred, set the motion down for evidentiary hearing on Haese's ineffective assistance of counsel claims.

On November 25, 1996, the magistrate judge found that Haese's failure to perfect an appeal was due to ineffective assistance of counsel and that he should be allowed an out-of-time appeal. Having found that Haese was entitled to relief on his claim of ineffective assistance of counsel for failure to file an appeal, the magistrate judge declined to reach Haese's claims of ineffective assistance of counsel relating to the trial itself. The magistrate judge held that the other claims raised in the motion may be presented on direct appeal. On March 19, 1997 the district court adopted the magistrate judge's findings in toto. This appeal followed.

II. Discussion

Ineffective assistance of counsel

This Circuit generally does not allow claims for ineffective assistance of counsel to be resolved on direct appeal when those claims have not been presented before the district court, since no opportunity existed to develop the record. United States v. Brewster, 137 F.3d 853, 859 (5th Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 247, 142 L.Ed.2d 205 (1998). Furthermo...