U.S. v. De La Mata
| Decision Date | 27 September 2001 |
| Docket Number | Nos. 00-10201,00-13319,s. 00-10201 |
| Citation | 266 F.3d 1275 |
| Parties | (11th Cir. 2001) UNITED STATES OF AMERICA , Plaintiff-Appellee , v. FRED DE LA MATA, ENRIQUE FERNANDEZ, a.k.a. Henry, MANUEL A CALAS, OSCAR CASTILLA , Defendants-Appellants |
| Court | U.S. Court of Appeals — Eleventh Circuit |
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Appeals from the United States District Court for the Southern District of Florida, D.C. Docket No. 92-00230 CR-DMM
Before ANDERSON, Chief Judge, RONEY and FAY, Circuit Judges .
Fred De La Mata, Manuel A. Calas, Oscar Castilla and Enrique Fernandez ("appellants") appeal their criminal convictions and sentences for bank fraud in violation of 18 U.S.C. § 1344, conspiracy to defraud the United States in violation of 18 U.S.C. § 371, misapplication of bank funds, in violation of 18 U.S.C. § 656, making false statements to a federally insured financial institution, in violation of 18 U.S.C § 1014, money laundering, in violation of 18 U.S.C. § 1956, making or causing to be made false entries, in violation of 18 U.S.C. § 1005, and engaging and conspiring to engage in a pattern of racketeering activities in violation of 18 U.S.C. §§ 1962(c) and(d). Appellants contend that the ex post facto clause barred their prosecution, that the indictment and jury instructions were fatally defective, that there was insufficient evidence to support their convictions and that the discovery of new evidence mandated the grant of a new trial. We find that appellants' convictions on two counts of bank fraud violated the ex post factoclause, but affirm their convictions and sentences in all other respects.
The charges arose out of several transactions involving the Republic National Bank ("RNB" or "the Bank"), a nationally chartered financial institution headquartered in Dade County, Florida. We summarize the facts, viewed in the light most favorable to the jury's verdict.
De La Mata, Calas, and Castilla (hereinafter the "bank insiders") were employed by RNB prior to 1983 until they resigned in the fall of 1988. De La Mata served as RNB's Deputy President until 1985, thereafter as President and Chief Operating Officer, and at all times a member of the Board of Directors. Calas served as the RNB's Senior Vice President until July 1988, and thereafter as Executive Vice President. Castilla was Senior Vice President during the entire period. In addition, De La Mata, Calas and Castilla were all members of RNB's Loan Committee. Fernandez was a local real estate speculator, ostensibly unconnected with RNB.
In May 1983, Calas retained attorney Anthony Silva to act as "trustee" in the purchase of certain real property located in Hialeah, Florida (hereinafter the "Westlands"). Calas, through Silva, obtained a contract to purchase the tract for $325,000, and provided Silva with the money for the initial deposit. Calas also directed Silva to form a corporation called Hialeah Properties, Inc., for the purpose of acquiring the Westlands property. The corporation's shares were initially issued in the name of Daniel Blanco, but that stock issuance was later voided and the shares were divided among De La Mata (50%), Calas (25%), and Castilla (25%). Calas approached Daniel Blanco to head the corporation, which Blanco understood to be a "ceremonial" position since he would not have a financial or operational stake in the corporation. The purpose of his job, according to Blanco, was to act as owner of the property in order to conceal Calas' involvement from RNB.
After procuring the purchase contract, Calas proposed to Luis Botifoll, Chairman of the Board of RNB, that RNB acquire the Westlands site for use as a branch banking facility. Calas did not disclose the bank insiders' financial interest in the property. Silva testified that he also discussed the proposal with Botifoll, fully aware that he was not to reveal the identities of the true parties in interest. Thereafter, Calas arranged for Botifoll to meet Blanco, the purported owner of the Westlands site, whereupon the two, on behalf of RNB and the "trust," negotiated a 30 year lease with an option to purchase the site. The rent commenced at $6500 per month, and escalated each year according to the cost of living. A government expert witness testified at trial that RNB had paid $362,000 above the fair market rental value as of the date of indictment.
On July 21, 1982, RNB's Board of Directors approved the lease Botifoll had negotiated. De La Mata participated in the vote, and concealed the bank insiders' personal interest in the transaction. In this way, De La Mata also caused RNB to fail to disclose, in the bank's application to the Office of the Comptroller of the Currency ("OCC") to open a branch facility, the involvement of bank officers in the transaction.
In September 1983, Fernandez obtained a purchase contract for $700,000 for a site in Little Havana consisting of a bank building (two ground leases) and its adjoining parking lot (fee simple lot). Fernandez obtained the purchase contract in the name of the Fernandez Land Trust, an entity initially created for the benefit of Fernandez but later secretly amended to include the bank insiders as named beneficiaries accordingly: De La Mata 37-1/2%, Calas 18-3/4%, Castilla 18-3/4% and Fernandez 25%. Calas provided a substantial portion of the $70,000 that Fernandez tendered as a down payment.
Thereafter, De La Mata proposed that RNB acquire the Little Havana site for use as a branch facility, and introduced Fernandez to Botifoll as the property's owner. At an October 1983 meeting of the RNB Directors, De La Mata participated in discussions to acquire the Little Havana branch building, and initiated the motion to apply to the OCC for a license to open the branch. Ultimately, RNB agreed to lease the Little Havana site for three years at an annual rate of $156,000, and to pay $100,000 per year to maintain an option to purchase the building.
In December 1983, the RNB Loan Committee approved a $700,000 loan to the Fernandez Land Trust, thus, completely underwriting the purchase of the Little Havana property. De La Mata, Calas and Castilla all voted to approve the loan to the Fernandez Land Trust while concealing their interest therein. In effect, the bank insiders caused RNB to misrepresent to the OCC in its branch opening application that no bank employees were involved in the transaction.
In August 1984, RNB needed additional parking for the Little Havana site. De La Mata proposed that RNB acquire, for an additional $150,000, the adjacent parking lot, the purchase of which RNB had unknowingly financed through the $700,000 loan to the Fernandez Land Trust. At the RNB Board meeting on August 22, 1984, De La Mata concealed his interest in the subject property and voted to approve the acquisition.
At the conclusion of the three year lease, on December 24, 1986, RNB purchased the Little Havana site from the Fernandez Land Trust for $1,000,000, including the option payments. The uncontested appraised value of the property, including the parking lot, was $291,000, resulting in approximately $850,000 loss to RNB.
In March 1984, Calas, Castilla and Fernandez retained attorney William Shockett to represent them in the purchase of property on LeJeune Road, near Miami International Airport. Shockett, as "trustee," entered into a contract to purchase the site for $700,000. Calas and Castilla provided the $70,000 down payment. At some point, De La Mata proposed to bank officials that RNB acquire the property for use as its International Private Banking ("IPB") branch, and arranged for a meeting between Botifoll and Fernandez, who purported to be the site's owner. Although Shockett advised his clients on the necessity of disclosure, Fernandez concealed the identities of his co-venturers from Botifoll.
Appellants, through a Florida corporation entitled "Real Estate Partners," applied to RNB for a loan to finance the purchase of the IPB site. When Shockett learned that RNB might not only lease, but also finance and lease back the property from its own officers, Shockett again warned of the conflict of interest and again was reassured that the Bank knew everything. Yet, the financial statement submitted in support of Real Estate Partners' loan application to RNB blatantly misrepresented Fernandez to be the sole shareholder of the corporation. It is undisputed that the shares of Real Estate Partners were divided among De La Mata (37-1/2%), Calas (18-3/4%), Castilla (18-3/4%) and Fernandez (25%).
On June 27, 1984, the RNB Board voted to pursue this site as a branch location. De La Mata participated in the discussion and cast an affirmative vote without disclosing his, or Calas' and Castilla's ownership interest in the property. After some negotiation, RNB entered into an agreement dated August 3, 1984, to lease the IPB site from Real Estate Partners for $165,000 per year with an option to purchase the property and premises after eight years. The evidence at trial showed that RNB paid $510,000 in excess of the fair market rental value during the first seven years of the lease.
On August 9, 1984, RNB's Loan Committee approved two loans, one to Real Estate Partners in the amount of $560,000 and one to Fernandez in the amount of $190,000, the proceeds of which were used to acquire the IPB property. De La Mata, Calas and Castilla all voted to approve the requested loans, without disclosing that they were the recipients. As a result of the bank insiders' deception, RNB filed an OCC bank branch application which failed to disclose the interest of its own officers in the site's acquisition.
On or about April 1, 1985, Real Estate Partners applied to RNB for another loan, in the amount of $180,000, for the construction of additional floor...
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