U.S. v. Miranne

• Decision Date: 27 September 1982
• Docket Number: No. 81-3484,81-3484
• Citation: 688 F.2d 980
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edmond G. MIRANNE and Edmond G. Miranne, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 980

688 F.2d 980

UNITED STATES of America, Plaintiff-Appellee, v. Edmond G. MIRANNE and Edmond G. Miranne, Jr., Defendants-Appellants.

No. 81-3484.

United States Court of Appeals, Fifth Circuit.

Sept. 27, 1982.

Dymond, Crull & Castaing, F. Irvin Dymond, New Orleans, La., for Edmond G. Miranne, Sr.

Lemle, Kelleher, Kohlmyer & Matthews, Don M. Richard, New Orleans, La., for Edmond G. Miranne, Jr.

John P. Volz, U. S. Atty., W. Glenn Burns, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE and JOHNSON, Circuit Judges, and VAN PELT^*, District judge.

VAN PELT, Senior District Judge:

Appellants Edmond G. Miranne (hereinafter referred to as Miranne, Sr.,) and Edmond G. Miranne, Jr., appeal their convictions of April 24, 1981, in the district court ¹ which were based on a 103 count indictment. Count 1 charged Miranne, Sr., Miranne, Jr., and Burt Mahl, III, with conspiracy, 18 U.S.C. 371 (1976), in violating 18 U.S.C. §§ 657, 1014 (1976). Counts 2-51 charged the defendants with the substantive offense of making or causing to be made a false statement in a loan application to Security Homestead Association, a federally insured savings and loan association, in violation of 18 U.S.C. §§ 1014 ² and 2 (1976). Counts 52-101 charged Miranne, Sr., and Miranne, Jr., as officers of the association, with the misapplication of money belonging to the association in violation of 18 U.S.C. §§ 657 ³ and 2 (1976). Counts 102 and 103 charge only Miranne, Sr., with perjury in violation of 18 U.S.C. 1621 (1976).

Defendant Mahl entered a plea of guilty to count 1, the conspiracy charge, and agreed to serve as a witness for the government against the Mirannes. Miranne, Jr., was found guilty by a jury on counts 1-101. Miranne, Sr., was found guilty by the same jury on counts 1, 26-51, and 76-103.

On August 12, 1981, Miranne, Sr., was sentenced to two years imprisonment on each of the 55 counts, the terms to run concurrently, and fined $27,500. The execution of the prison sentences was suspended and Miranne, Sr., was placed on three years probation. As a condition of probation, he was ordered to pay $130,000 in restitution to the savings and loan association and to perform 320 hours of public service work.

Miranne, Jr., was sentenced to two years imprisonment for each of the 101 counts, sentences to run concurrently, and fined $27,775. Execution of the prison terms was suspended and three years of probation imposed. As a special condition of probation, Miranne, Jr., was ordered to perform 320 hours of public service work and to undergo treatment for alcoholism.

On appeal, appellants raise the following assignments of error: (1) the court erred in denying appellants' motion to dismiss or to compel election of counts; (2) the district judge erred in refusing to recuse himself; (3) the government failed to preserve certain exculpatory material in violation of Brady v. Maryland; (4) whether a conviction supported largely by perjured testimony, which is known by the government, should be allowed to stand; and (5) was the evidence involving the perjury counts tainted? We have analyzed these contentions and find no grounds for reversal. Thus we affirm the judgment of the district court. Before discussing our reasoning in this opinion, it would be helpful to briefly outline the persons and events involved.

I

In outlining the facts of this case, we must remember that our review is limited and that we must consider the facts in light most favorable to the government. United States v. White, 450 F.2d 264 (5th Cir. 1971), cert. denied, 405 U.S. 1072, 92 S.Ct. 1523, 31 L.Ed.2d 805 (1972).

At the time of the transactions which gave rise to this prosecution, Miranne, Sr., was the president and chief executive officer of Security Homestead Association, a federally insured savings and loan association in New Orleans, Louisiana. His son, Miranne, Jr., was the association's attorney and a member of its board of directors. Burt Mahl, III, was a local real estate developer. From a review of the evidence, it appears that Mahl was in need of financing to purchase various properties in the New Orleans area. He went to the Mirannes to acquire such financing. Early in 1976, Miranne, Jr., introduced Mahl to Joseph Toranto. Toranto was a loan officer in charge of Security Homestead's Family Finance Center. Toranto was limited by state law to granting secured loans up to $10,000 for home improvement, not purchase.

Mahl applied for and received 50 loans for a total of approximately $460,000. These loans can be divided into three groups: 24 applied for on January 12, 1976; 18 on February 20, 1976; and 8 on May 13, 1976. On each loan application, the stated purpose for the loan was to "renovate property."

Without going into detail, it is apparent that the Mirannes provided Mahl with several shortcuts from the normal loan approval procedure. In addition, it appears that, for their efforts, the Mirannes received kickbacks from the unused proceeds of the loans, and possibly part ownership in properties which were purchased with the loan moneys.

II

In their second assignment of error, appellants argue that District Judge Edward J. Boyle erred in denying appellants' motion to recuse himself "on the grounds of potential bias and prejudice against the defendants and/or the appearance thereof...." ⁴ We first address the recusal issue because, if meritorious, discussion of the remaining errors would be unnecessary.

Prior to this motion for recusal, three other district judges had disqualified themselves in this case due to personal relationships with the appellants or financial interests in Security Homestead. As to Judge Boyle, the appellants alleged in an affidavit that the Judge's son, Edward J. Boyle, Jr., was one of two court-appointed attorneys representing the trustees of the bankrupt Fountainbleau Hotel Corporation in a 1976 state court civil action brought by the trustees against Fountainbleau-Orleans, a Louisiana partnership. The lawsuit was still pending at the time of the trial of this case. Appellants further alleged that the Mirannes have a 21 percent interest in the partnership. Finally, appellants alleged that "(a)s a result of the substantial claim for liability and because of (unspecified) actions taken by Edward J. Boyle, Jr., the trustees and others, to defendant's loss and detriment, defendant has intended for a period preceding this indictment to file a civil suit against all of said parties." ⁵

Appellants filed the motion under 28 U.S.C. §§ 144 ⁶ and 455(a). ⁷ As stated in Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, 1051 (5th Cir. 1975): "Once the motion is filed under § 144, the judge must pass on the legal sufficiency of the affidavits, but may not pass on the truth of the matter alleged." In order to be legally sufficient, the affidavit must meet, among other requirements, the following test:

"1. The facts must be material and stated with particularity;

"2. The facts must be such that, if true they would convince a reasonable man that a bias exists;

"3. The facts must show the bias is personal, as opposed to judicial, in nature."

Parrish v. Board of Commissioners of Alabama State Bar, 524 F.2d 98, 100 (5th Cir. 1975) (en banc), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976), quoting United States v. Thompson, 483 F.2d 527, 528 (3d Cir.) motion denied, 415 U.S. 911, 94 S.Ct. 1456, 39 L.Ed.2d 496 (1974).

We agree with Judge Boyle that § 144 did not require his recusal. The affidavit only alleged a "potential bias" and did not allege facts which support the contention that an actual and present bias existed. In addition, the argument that Judge Boyle possessed a bias because his son was an attorney in a lawsuit against a partnership in which the appellants had a small interest without demonstrating what beneficial effect, if any, the conviction of the appellants would incur upon Boyle, Jr., is far too speculative to convince a reasonable man that a bias existed. The same conclusion is applicable to the appellants' allegation that, for some time, they had thought about bringing a civil action against Boyle, Jr. The civil action against the Fountainbleau partnership had been in existence for five years at the time the motion for recusal was filed. The fact that the appellants had not brought the threatened action against Boyle, Jr., during that time raises serious question as to the weight to be given appellants' allegation.

Section 455(a) is a self-enforcing statutory standard for disqualification of a judge. Davis, supra at 1051. It is broader than § 144 in that it requires a judge to disqualify himself when "his impartiality might reasonably be questioned." Thus, under § 455(a) an actual demonstrated prejudice need not exist in order for a judge to be required to recuse himself. "Section 455(a) is a general safeguard of the appearance of impartiality and establishes a 'reasonable factual basis-reasonable man' standard." Fredonia Broadcasting Corp., Inc. v. RCA Corp., 569 F.2d 251 (5th Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167 (1978). Because of the speculative nature of appellants' allegations, we hold that a reasonable man, viewing the facts as they stood at the time of the motion, would not reasonably question Judge Boyle's impartiality and that Judge Boyle did not abuse his discretion in denying the motion for recusal.

III

In their first assignment of error, appellants contend that, as to the first 42 loans and the corresponding charges (counts 2-43 and 52-93), the counts in the indictment were multiplicious and that the court should have granted appellants' motion to dismiss the indictment or to compel election of counts. Appellants' argument is based on the fact that the first loan application, signed by Mahl, was photocopied 41 times to make up...