U.S. v. Todosijevic, 97-1691

• Decision Date: 25 November 1998
• Docket Number: No. 97-1691,97-1691
• Citation: 161 F.3d 479
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rada TODOSIJEVIC, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 479

161 F.3d 479

UNITED STATES of America, Plaintiff-Appellee, v. Rada TODOSIJEVIC, Defendant-Appellant.

No. 97-1691.

United States Court of Appeals Seventh Circuit.

Argued Dec. 2, 1997.

Decided Nov. 25, 1998.

Brian P. Netols (argued), Office of the United States Attorney, Criminal Division, Chicago, IL, for Plaintiff-Appellee.

James A. Graham (argued), Chicago, IL, for Defendant-Appellant.

Before WOOD, JR., COFFEY and FLAUM, Circuit Judges.

COFFEY, Circuit Judge.

Defendant-appellant Rada Todosijevic and her husband Ljubo were convicted on charges of bank fraud, making false statements to a financial institution, perjury, obstruction of justice, and bankruptcy fraud. Rada appeals her conviction. We affirm.

I FACTS

In the late 1980s, Rada Todosijevic and her husband Ljubo were engaged in running two businesses in Chicago--a travel agency known as Kompas Travel, and Slavoff Imports, through which they sold Yugoslavian newspapers and magazines. In April 1989 the Todosijevics jointly applied for a mortgage loan from Cragin Federal Bank (of Chicago, Illinois) to purchase the property which housed their home and place of business. Cragin required that their written application include copies of their recent tax returns. They complied and submitted documents which they claimed were copies of their tax returns for the taxable years 1987 and 1988. The documents submitted were in fact fraudulent, as the Todosijevics had failed to file tax returns for 1987 and 1988. Based in part on this fraudulent information, Cragin approved a $255,000 loan for the Todosijevics.

On July 13, 1990, the Todosijevics once again returned to Cragin, seeking to refinance the 1989 loan of the above referred to real estate. The written loan application included a question asking Rada and Ljubo "Are you a party in a lawsuit?" Ljubo and Rada both answered "No." This was a misrepresentation on the part of Ljubo, for in fact he was a party to a lawsuit pending at that time: in October 1989 a company named German Language Productions ("GLP") had filed suit against Ljubo, Slavoff Imports, and Kompas Travel, alleging that those defendants were tortiously interfering with GLP's business. Rada endorsed Ljubo's misrepresentation by attesting, in the verification section of the application, that "all statements made in this application are true." Rada claims that this was an inadvertent misrepresentation because she knew nothing about the GLP lawsuit at the time she signed the application, but the jury did not believe her. In any event, Cragin approved a refinance loan of $245,000 and made out a check to the Todosijevics for $55,000.

A little less than a year later, on June 10, 1991, GLP received a default judgment from the district court and commenced an Enforcement Action against Ljubo and the two family businesses. Rada was deposed on July 25, 1991, as part of the Enforcement Action, and, just as she had done when applying for the original Cragin loan in 1989, she tendered copies of fraudulent joint tax returns for herself and Ljubo (for the taxable years 1988 and 1989). GLP deposed Ljubo on August 6, 1991, and he once again gave false testimony and submitted the fraudulent tax returns that his wife had offered two weeks earlier. On August 7, 1991, the day after Ljubo's deposition, he filed a chapter 11 bankruptcy petition, on behalf of himself as well as his Slavoff and Kompas business enterprises. The bankruptcy court ordered a stay on the Enforcement Action and appointed a trustee to assume control over the Todosijevics' personal and business assets. Rada, in an attempt to circumvent the trustee's control, formed a new corporation, named K.N.O.A. Imports, and tried to transfer Slavoff's newspaper-selling operations to this new entity. Her scheme was short-lived, for GLP became aware of K.N.O.A. Imports and requested the bankruptcy court to add the newly-formed corporation as a defendant in the Enforcement Action. On August 15, 1991, Rada filed her own chapter 11 bankruptcy petition, for herself and K.N.O.A. The bankruptcy court ordered that Rada's bankruptcy action be consolidated with Ljubo's bankruptcy action, and placed Rada's property and K.N.O.A. under the control of the same bankruptcy trustee supervising Ljubo's property and the Todosijevics' other businesses.

The trustee retained the services of an auctioneer to auction the Todosijevics' property, and on August 26, 1991, while the auctioneer was preparing the inventory, Ljubo offered him $200 requesting that he not include certain items. The auctioneer refused the $200 offer and reported the incident to the trustee, which resulted in one of the bankruptcy fraud charges filed against Ljubo (for attempted bribery, 18 U.S.C. § 152).

Two months later, on November 1, 1991, the Todosijevics defaulted on their 1990 refinancing loan payments with Cragin, and in turn Cragin filed a foreclosure action in Cook County Circuit Court. After the foreclosure was reduced to judgment, a foreclosure sale was set for March 22, 1994, but on that very day Rada filed a chapter 13 bankruptcy petition, and the court entered a stay on the sale. At this time Rada falsely asserted that she had not previously filed for bankruptcy. She also failed to list GLP as one of her creditors, even though she had been found partially liable in the Enforcement Action for the GLP judgment.

On November 16, 1994, a federal grand jury charged Rada and Ljubo in a nine count indictment in the district court. Ten months later, on September 27, 1995, a ten count, second superseding indictment was filed, charging Rada and Ljubo with bank fraud, in violation of 18 U.S.C. §§ 1344 and 2; making false statements to a financial institution, in violation of 18 U.S.C. §§ 1014 and 2; perjury, in violation of 18 U.S.C. § 1623; obstruction of justice, in violation of 18 U.S.C. § 1503; and bankruptcy fraud, in violation of 18 U.S.C. § 152. Most of the counts named both Rada and Ljubo jointly as defendants, but some counts named Rada and/or Ljubo individually (Count Six charged Ljubo with perjury; Counts Eight and Nine charged Ljubo with bankruptcy fraud; and Count Ten charged Rada with bankruptcy fraud). Before trial, Rada and Ljubo, husband and wife, alleged that the indictment had improperly joined them, and they filed a motion for severance, which the judge denied, agreeing with the government that the activities of the defendants were all part of a common scheme. The two were tried before a jury and were found guilty on all counts except Count Nine (the court had dismissed Count Nine before trial, upon the motion of the government). Both were sentenced to a term of twenty-one months imprisonment under the applicable sentencing guidelines.

Rada argues that there was insufficient evidence to convict her on Counts Two (bank fraud) and Five (making false statements to a financial institution), both of which alleged that Rada, on the 1990 refinancing loan application, intentionally concealed from Cragin the fact that Ljubo was a defendant in the GLP lawsuit. Rada further argues that her convictions must be reversed because the district court erroneously rejected her pre-trial motion alleging improper joinder of defendants under Fed.R.Crim.P. 8(b) and seeking severance under Fed.R.Crim.P. 14.

II SUFFICIENCY OF EVIDENCE

Waiver. Rada contends that the government failed to submit evidence at trial to establish that, at the time she signed the 1990 refinancing application, she knew that Ljubo was a defendant in the GLP lawsuit. We agree with the government that she has waived this sufficiency of the evidence argument because she failed to raise this issue before the trial court, as required by Fed.R.Crim.P. 29. See United States v. Archambault, 62 F.3d 995, 998 (7th Cir.1995) ("[T]here is nothing in the record to indicate that [defendant] raised his challenge to the sufficiency of the evidence by way of a timely motion for a judgment of acquittal at the close of the evidence or within the seven-day period following the verdict, Fed.R.Crim.P. 29. 'Failure to do either waives any challenge on appeal to the sufficiency of the evidence....' ") (quotation omitted). Even though Rada did present a Rule 29 motion to the trial court, the motion she presented fell short of preserving her current appeal, because she rests her current challenge on grounds different from those she relied on in her motion to the trial court. At the close of evidence, Rada and her husband brought a Fed.R.Crim.P. 29 motion on three grounds, none of which pertained to the subject matter of her current appeal. ¹ Significantly, the trial judge, before ruling on her motion, on two separate occasions queried the defendants' counsel as to whether there were any other possible grounds for the Rule 29 motion. ² Rada had the opportunity at that time to raise the sufficiency of evidence claim she asks us to review, but she failed to do so. Accordingly, under the law of this Circuit, see United States v. McDonough, 603 F.2d 19, 21 (7th Cir.1979), she has waived her right to raise this challenge on appeal. In McDonough, the defendant-appellant asked this Court to reverse his conviction, challenging "the sufficiency of the Government's evidence showing that the offense was committed in the District." Id. at 21. We held that the defendant had waived his right to raise this "venue" issue on appeal by failing to raise it in a timely fashion before the trial court: although he had properly moved for acquittal at the close of the government's case, his motion had been based upon grounds other than venue. Thus, on appeal, the McDonough defendant was restricted to challenging the district judge's decision solely on the grounds he relied upon at trial. Id. at 21. ³ Analysis. Inasmuch as Rada has waived her sufficiency of the evidence claim, she is entitled to a reversal of her conviction only if she demonstrates plain error. See United States v. Meadows, 91 F.3d 851, 854 (7th Cir....