U.S. v. Mulderig
| Decision Date | 15 August 1997 |
| Docket Number | 95-30253 and 97-30123,Nos. 95-30206,s. 95-30206 |
| Citation | 120 F.3d 534 |
| Parties | UNITED STATES of America, Plaintiff-Appellant--Cross-Appellee, v. William MULDERIG, Defendant-Appellee--Cross-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John J. Tigue, Jr., Ross N. Herman, Morvillo, Abramowitz, Grand, Iason and Silberger, New York City, Ralph Shipley Whalen, Jr., New Orleans, LA, William Jude Hine, Skadden, Arps, Slate, Meagher & Flom, Mount Sinai, NY, Michael D. Rips, Skadden, Arps, Slate, Meagher & Flom, New York City, for Mulderig.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before DAVIS, STEWART and PARKER, Circuit Judges.
This case presents the question of whether William Mulderig, a sophisticated and once successful New York entrepreneur, was properly convicted of conspiring to misapply bank funds, make false entries in bank records, and to make false statements to influence a federal agency (Count 1); of making a false statement to a financial institution (Count 2); and of aiding and abetting the misapplication of bank funds (Count 3). 1 Although the jury also found Mulderig guilty on three additional counts of aiding and abetting the misapplication of bank funds (Counts 5, 7, and 8), the district court entered a judgment of acquittal on those counts. The Government has cross-appealed that ruling.
After a thorough review of this voluminous record, we AFFIRM Mulderig's convictions in all respects and AFFIRM the district court's judgment of acquittal on Counts 5, 7, and 8.
John and Joseph Mmahat were brothers and chairman and president, respectively, of Gulf Federal Savings Bank (Gulf Federal), a federally insured financial institution located in Metairie, Louisiana. A 1983 federal audit revealed that Gulf Federal was essentially insolvent and that some of its commercial loans were unlikely to be repaid. To artificially decrease the amount of delinquent loans, the Mmahats made two sham loans to shell corporations owned by Mulderig, an attorney and entrepreneur.
The first sham loan stemmed from a transaction involving CPA Associates (CPA), an investment partnership that had acquired, through a Gulf Federal loan, a set of town homes known as Cypress Park. By late 1984, CPA was delinquent on its loan. Instead of foreclosing, the Mmahats arranged for Cypress Park to be purchased by K & K Financial Services (K & K)--which was owned by Mulderig--for $2,069,000; this constituted "repayment" of the CPA loan. Mulderig later submitted to Gulf Federal a financial statement for K & K to complete the necessary loan documentation. The statement, however, did not reflect loans of $1.4 million that another bank had made to K & K in 1984 to finance various Mulderig enterprises.
The second loan was similar. Gulf Federal financed the purchase by Ronald Frank of the Nel Place apartment complex, but Frank became unable to meet his payments. Gulf Federal persuaded Mulderig to buy Nel Place and replace the failing loan with one to Dermul Management (Dermul), one of Mulderig's companies. In 1984, Frank sold Nel Place to Dermul for $1,632,730, and Gulf Federal loaned Dermul that amount plus $971,312.75, secured by a deed of trust for property Mulderig owned in New York. Neither
sham loan was repaid, and Gulf Federal went into receivership in November 1986.
In the indictment (dated December 16, 1993), Mulderig was charged with conspiring, under 18 U.S.C. § 371, to misapply bank funds (18 U.S.C. § 657), to make false entries in bank records (18 U.S.C. § 1006), and to make false statements to influence a federal agency (18 U.S.C. § 1008) (Count 1); making a false statement to a financial institution (Count 2); and aiding and abetting the misapplication of bank funds (Counts 3, 5, 7, and 8). On November 3, 1994, a jury found Mulderig guilty on all counts. The district court denied Mulderig's motion for judgment of acquittal on Counts 1-3, but granted a judgment of acquittal on Counts 5, 7, and 8.
On June 23, 1995, the district court allowed Mulderig to file a second motion for judgment of acquittal or new trial as to Counts 1-3, and this motion was subsequently denied. In August 1996, the district court granted Mulderig's motion to subpoena documents from federal regulators. Mulderig sought to prove that the Government's preindictment delay was prejudicial and done with the intent of obtaining a tactical advantage over Mulderig. After discovery, Mulderig in October 1996 filed a third Rule 29 and Rule 33 motion for judgment of acquittal or new trial based on alleged newly discovered evidence. However, relying on the Supreme Court's decision in Carlisle v. United States, 517 U.S. 416, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996), the district court held that it had no jurisdiction to hear Mulderig's Rule 29 and Rule 33 motions.
On December 18, 1996, Mulderig was sentenced to 54 months' imprisonment on Counts 1 and 3 and to five years' probation on Count 2, and ordered to pay restitution in the amount of $1,032,000. That same day, Mulderig filed a timely notice of appeal. The Government timely cross-appealed the district court's decision to grant judgments of acquittal on Counts 5, 7, and 8. On February 1, 1997, Mulderig filed a writ of mandamus asking us to direct the district court to exercise its jurisdiction and rule on Mulderig's third post-conviction motion for judgment of acquittal or new trial. We consolidated the writ of mandamus with Mulderig's direct appeal and the Government's cross-appeal.
Almost two months after the district court sentenced Mulderig and more than two years after his conviction, Mulderig filed a petition for writ of mandamus urging us to order the district court to exercise jurisdiction over Mulderig's third motion for judgment of acquittal or new trial. In the petition, Mulderig contended that "newly discovered evidence" proved his innocence on Counts 1-3. The district court never ruled on the merits of Mulderig's factual contentions because the district court decided that it did not have jurisdiction to rule on the substantive claims raised. We decline to issue the writ.
It is by now well established that mandamus is an extraordinary remedy reserved for those situations in which "the trial court has exceeded its jurisdiction or has declined to exercise it, or when the trial court has so clearly and indisputably abused its discretion as to compel prompt intervention by the appellate court." In re Dresser Indus., Inc., 972 F.2d 540, 543 (5th Cir.1992) (citation omitted). We shall not issue a writ of mandamus if the petitioner can obtain the relief requested on direct appeal. See McDermott Int'l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 748 (5th Cir.1993).
In this case, Mulderig did not seek a writ of mandamus until almost three months after the district court declined to exercise jurisdiction over Mulderig's third, post-conviction motion for judgment of acquittal or new trial and approximately two months after Mulderig was sentenced. Although the district court declined to exercise its jurisdiction (a recognized basis for issuing a writ of mandamus), once Mulderig filed his notice of appeal, the district court lost jurisdiction over this case. See, e.g., United States v. Greenwood, 974 F.2d 1449, 1468-69 (5th Cir.1992), cert. denied sub nom., Crain v. United States, 508 U.S. 915, 113 S.Ct. 2354, 124
L.Ed.2d 262 (1993). At this point, we cannot put the toothpaste back in the tube. Nonetheless, Mulderig's notice of appeal brought up all orders issued by the district court, Trust Co. of La. v. N.N.P. Inc., 104 F.3d 1478, 1485-86 (5th Cir.1997) (on rehearing), and so Mulderig's claim that the district court erred in declining to exercise jurisdiction over his Rule 29 and Rule 33 motions can be remedied (if necessary) in his direct appeal.
In his direct appeal, Mulderig asserts a number of legal errors committed by the district court. In addition, Mulderig argues that the evidence was insufficient to support convictions on Counts 1-3. We find no legal error and conclude that the evidence was sufficient to support Mulderig's convictions on Counts 1-3. We begin with the legal issues and then proceed to Mulderig's sufficiency claims.
Mulderig argues that the district court committed reversible error by not granting discovery and holding a hearing after the district court made a pre-trial finding that Mulderig suffered actual prejudice from the Government's nine-year preindictment delay. We must decide whether our en banc decision in United States v. Crouch, 84 F.3d 1497 (5th Cir.1996) (en banc), cert. denied, --- U.S. ----, 117 S.Ct. 736, 136 L.Ed.2d 676 (1997) automatically entitled Mulderig to discovery and a hearing once the district court found that Mulderig suffered actual and substantial prejudice from the Government's preindictment delay. We conclude that Crouch does not so hold.
In Crouch, we held that "for pre-indictment delay to violate the due process clause, it must not only cause the accused substantial, actual prejudice, but the delay must have been intentionally undertaken by the government for the purpose of gaining some tactical advantage over the accused in the contemplated prosecution or for some other impermissible, bad faith purpose." Id. at 1514. We neither stated nor implied that a defendant who has suffered actual and substantial prejudice as the result of the Government's preindictment delay is automatically entitled to an evidentiary hearing. Thus, we reject Mulderig's assertion that our holding...
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