U.S. v. Moran

• Citation: 393 F.3d 1
• Decision Date: 15 December 2004
• Docket Number: No. 03-2148.,No. 03-2149.,03-2148.,03-2149.
• Parties: UNITED STATES of America, Appellee, v. Nora F. MORAN, Defendant, Appellant. United States of America, Appellee, v. John M. Moran, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1

393 F.3d 1

UNITED STATES of America, Appellee, v. Nora F. MORAN, Defendant, Appellant.

United States of America, Appellee, v. John M. Moran, Defendant, Appellant.

No. 03-2148.

No. 03-2149.

United States Court of Appeals, First Circuit.

Heard November 4, 2004.

Decided December 15, 2004.

COPYRIGHT MATERIAL OMITTED

Chauncey B. Wood, with whom Jean Larocque and Shea, Larocque & Wood were on brief, for appellant Nora F. Moran.

Francis J. DiMento, with whom Jason A. Kosow and DiMento & Sullivan were on brief, for appellant John M. Moran.

Christopher L. Varner, Assistant United States Attorney, with whom Michael J Sullivan, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, STAHL, Senior Circuit Judge, and LYNCH, Circuit Judge.

SELYA, Circuit Judge.

This case is before us for a second time — but with the parties' roles reversed. In its first iteration, a panel of this court set aside the district court's entry of judgment n.o.v. for the defendants and reinstated guilty verdicts returned by the jury. See United States v. Moran, 312 F.3d 480 (1st Cir.2002) (Moran I). The district court subsequently declared untimely the defendants' belated efforts to secure a new trial and imposed sentence. The defendants now appeal.

This time around, we are asked to reconsider the original panel decision; to reverse the district court's determination that the defendants did not file a timeous motion for new trial; and to grant relief from the judgments of conviction on the ground that the defendants were burdened by ineffective assistance of counsel. In addition, the defendants advance, for the first time, claims of instructional error and prosecutorial misconduct. We reject outright the vast majority of these animadversions. As to the ineffective assistance claims, however, we find the record insufficient to rule definitively, and so dismiss those claims without prejudice to their renewal in proceedings under 28 U.S.C. § 2255.

I. BACKGROUND

We sketch the facts of the offenses of conviction, referring the reader who hungers for more exegetic detail to our earlier opinion. See Moran I, 312 F.3d at 482-87. Following the established praxis, we rehearse these facts in the light most compatible with the verdicts. See, e.g., United States v. Hussein, 351 F.3d 9, 11 (1st Cir.2003).

In October of 1986, John M. Moran, an attorney who represented, inter alios, First American Bank for Savings, met with Edgar Puente and David Boersner, aspiring real estate developers, who were seeking financing for a pair of projects in Boston, Massachusetts. The developers hired Mr. Moran as their mortgage broker and agreed to pay him 1.5% of the face amount of any loans that he procured on their behalf. Mr. Moran arranged a meeting between the developers and a First American loan officer, Edmund Noke, during which Noke agreed to lend Puente and Boersner $17,000,000. Following this meeting, the developers agreed that Mr. Moran would receive a 20% profit interest in the two projects. His wife, Nora F. Moran — who sat on the board of directors of First American — created the Moran Development Group Trust (MDG Trust) to hold the equity interest and named herself sole trustee. Under state law, the identity of the beneficiaries of the MDG Trust was not a matter of public record.

In November of 1986, Mr. Moran submitted formal loan proposals to First American on behalf of Puente and Boersner. He disclosed neither his 20% profit interest nor his anticipated 1.5% brokerage fee, even though he was duty bound to do so. First American's executive committee approved the loans in December, and the bank designated Mr. Moran as its closing attorney. Mr. Moran conducted the closing, charged the bank handsomely for his services, and (unbeknownst to the bank) collected $255,000 from the developers. He never submitted the customary settlement sheets, which would have detailed the use of the loan proceeds (and, thus, would have revealed his conflicted interests).

The record indicates that the Puente/Boersner loans were among 153 loans approved that month by the bank's executive committee. The committee considered those loans for approval in two groups. The first vote approved a block of 140 loans, and the second approved the remaining 13. The Puente/Boersner loans were part of the second (smaller) lot. The executive committee sent a report of its December activities to the bank's board of directors, but only provided details as to the first batch of loans.

In January 1987, the board of directors, including Mrs. Moran, met to consider the December report. The parties fiercely contest exactly what transpired at that meeting. The government's version, disputed by the defendants, is that Mrs. Moran voted either to ratify or approve the Puente/Boersner loans instead of disqualifying herself due to her and her husband's financial interests. Whatever happened that day, it is clear that Mrs. Moran never disclosed to First American the Morans' financial interests in the loans.

By 1988, the Puente/Boersner loans were underwater. Spurred by the prospect of a substantial loss, First American began an investigation that would eventually uncover the manifold irregularities surrounding the loans and the Morans' interests in them. In a meeting with First American's outside counsel, Mrs. Moran admitted that she knew about her husband's financial stake at the time the loans were approved. For his part, Mr. Moran claimed that he had fully recounted his conflicted interests to Noke. The bank's records did not reflect any such disclosure.

Even though the Puente/Boersner loans eventually soured and the bank failed, the saga continued. On July 9, 1997, a federal grand jury indicted the Morans for, inter alia, committing bank fraud by failing to disclose their financial interests in the Puente/Boersner projects, 18 U.S.C. § 1344, aiding and abetting bank fraud, id. § 2, and conspiring to commit bank fraud, id. § 371.¹ Trial commenced on May 17, 1999. As to Mr. Moran, the government introduced evidence describing his fiduciary duties to the bank. It also adduced evidence showing that the paperwork he had submitted to First American did not disclose either the brokerage or profit-sharing arrangements. Finally, Noke testified that Mr. Moran never divulged his economic stake in the development projects and stated that such a revelation would have led to the filing of an insider transaction report. The government then showed that no such report appeared in the bank's archives.

The government's case against Mrs. Moran was thinner. It did, however, introduce evidence limning her regulatory and fiduciary duties and showing that she was involved in various ways with the Puente/Boersner loans (e.g., she had visited the sites during a pre-loan inspection, had created the MDG Trust and named herself as trustee, and was generally privy to her husband's financial dealings). The government also proved that Mrs. Moran had failed to apprise her fellow board members about the Morans' financial interests in the Puente/Boersner projects.²

The defense moved for judgment of acquittal following the close of the government's case in chief. Fed.R.Crim.P. 29(a). The district court denied the motions. During the defense case, Mr. Moran testified that he had made full disclosure to Noke. Mrs. Moran did not testify. The government presented one rebuttal witness. At the close of all the evidence, the defense again moved for judgment of acquittal. The district court reserved decision, Fed.R.Crim.P. 29(b), and the jury found the defendants guilty on all the submitted counts.

The verdicts were recorded on July 14, 1999, and judgment entered on that date. The next day, the Morans filed a renewed motion for judgment of acquittal. See Fed.R.Crim.P. 29(c). The district court granted the Morans an extension of time within which to file supplemental memoranda. On September 15, each defendant filed a supplemental memorandum that asked the court, among other things, to treat the joint July 15 motion, in the alternative, as a motion for new trial under Fed.R.Crim.P. 33. The government opposed both the motion for judgment of acquittal and the requests for conversion. The district court pondered the matter at length.³ On July 13, 2000, it granted the motion for judgment of acquittal without addressing the conversion requests.

The government appealed from this ruling. We reversed. Moran I, 312 F.3d at 494. As to Mr. Moran, we found ample evidence to support the verdict: he had a plain duty to disclose his sharply conflicted financial interests to the bank, and his testimony that he had made the disclosure allowed the jury, based on credibility and demeanor, to disbelieve him and credit Noke's contrary testimony. Id. at 490-91. To buttress that permissible finding, the record supported the conclusion that Mr. Moran intentionally failed to disclose the information in order to gain a financial advantage. Id. at 491. "In sum, there was sufficient evidence to allow a rational jury to conclude, beyond a reasonable doubt, that ... Moran concealed his financial arrangements with Puente and Boersner... pursuant to an affirmative endeavor calculated to defraud First American." Id. at 491-92.

As to Mrs. Moran, we found that although the government's theory that she had voted to ratify or approve the Puente/Boersner loans did not pass muster, see supra note 2, there were other, independently sufficient grounds for upholding the verdict. Id. at 492. Specifically, the government had presented adequate evidence to allow a rational jury to conclude that Mrs. Moran, "aware of her husband's outside dealings and arrangements concerning the projects prior to the consummation of the transactions at issue, chose not to disclose the conflicts ... because she anticipated that a financial windfall would accrue to her husband (and by extension to her) should the loans be approved." Id. We also discerned...