Appeals from the United States District Court for the Eastern District of Louisiana. D.C. DOCKET NUMBER CR-91-426-N. JUDGE Edith B. Clement
Before Politz, Chief Judge, King and Duhe, Circuit Judges.
Ronald Brechtel and Phillip Gattuso appeal their convictions of unlawful participation in benefits from savings and loan transactions, in violation of 18 U.S.C. §§ 2, 1006. Finding no reversible error in either Brechtel's or Gattuso's convictions, we affirm.
Brechtel and Gattuso served as directors of Enterprise Federal Savings & Loan (EFS&L). Brechtel also served as secretary of the board and as a member of the loan committee. In addition to their involvement with EFS&L, Brechtel and Gattuso had interests in the Saulet and Ames Farm partnerships, two real estate development concerns owning land in Jefferson Parish, Louisiana. Gattuso's cousin Roy Gattuso managed those partnerships.
In 1984 and 1985, Gattuso executed documents by which Saulet and Ames Farm granted options on parcels of land. Stavros Amitsis, holder of the Saulet option, had exhausted his credit line and could not secure financing at EFS&L to purchase this property. Nikitas Pepis and Lynn Yao -- two Amitsis associates -- sought EFS&L loans with which to purchase the Saulet and Ames Farm parcels. Marilyn Ortalano, an EFS&L loan officer, informed the loan committee that if the loans were approved, Amitsis ultimately would receive the proceeds thereof. She also informed them that Robert Evans, EFS&L's board chairman, wanted the Yao and Pepis loans approved to keep Amitsis afloat. Brechtel urged the loan committee to approve the transactions.
On December 18, 1984, the $420,000 Pepis loan received committee approval. At a January 11, 1985 closing, Saulet sold its parcels to G&N Enterprises, a company recently acquired from Amitsis by Paul Baltas and Lloyd Broussard. G&N paid Saulet $52,500 cash and executed a note for the balance of the $350,000 purchase price, securing the credit portion with a mortgage on the property. Brechtel and Gattuso both signed the instrument transferring the Saulet parcels to G&N. Later that day, as planned, Pepis took title to the parcels in a second closing and assumed the note executed by G&N. EFS&L received a second mortgage on the Saulet parcels as security for the Pepis loan. Six days later, the full EFS&L board approved the Pepis loan. Loan committee notes circulated at the board meeting reflected that the Saulet property secured that loan. Although board minutes for the January 17, 1985 meeting note the presence of Brechtel and Gattuso, the minutes reflect no disclosure by either of them of their interest in the Pepis transaction. Gattuso testified that he informed Evans of his and Brechtel's interest and that both abstained from the vote of approval.
In March 1985, the loan committee approved the $500,000 Yao transaction. The record contains no minutes reflecting approval of this loan by the full EFS&L board. On April 1, 1985, Yao took title to the Ames Farm parcel, giving in return cash and a note secured by the property. Brechtel and Gattuso attended that closing and signed the act of sale. EFS&L received a second mortgage on the Ames Farm property.
By 1986, Pepis and Yao were experiencing difficulty meeting their obligations under the Saulet and Ames Farm notes. On April 22, 1986, to avoid a foreclosure EFS&L purchased the first mortgage on the Saulet parcels. On April 29, 1986, Gattuso and Brechtel were advised by letter from Roy Gattuso of Yao's delinquency on the Ames Farm note and that Yao would seek to refinance his debt to the partnership through EFS&L. Roy Gattuso also advised that if Yao failed to obtain supplemental financing through EFS&L, foreclosure proceedings would be initiated. On June 19, 1986, the EFS&L board approved a $1.8 million loan permitting Yao to work out his financial problems. Brechtel, but not Gattuso, attended the June 19 meeting. Brechtel testified that he disclosed his and Gattuso's interest in the Yao loan and abstained from voting on it. The minutes from the June 19 meeting and the testimony of two other board members belie Brechtel's statement.
The grand jury indicted Brechtel and Gattuso on four counts of unlawful participation in benefits from savings and loan transactions, in violation of 18 U.S.C. §§ 2, 1006.*fn1 Counts one and two related to the initial loans by EFS&L to Pepis and Yao, respectively; count three to EFS&L's buyout of the Pepis mortgage, and count four to EFS&L's final loan to Yao. The district court denied motions by both Brechtel and Gattuso to dismiss counts of the indictment as multiplicitous. The jury acquitted Brechtel and found Gattuso guilty on count one, found both defendants guilty on counts two and four, and acquitted both defendants on count three. Brechtel and Gattuso unsuccessfully moved for judgment of acquittal and for new trial. The district court sentenced both defendants to one year of halfway house confinement, payment of incarceration costs and the statutory assessments, and restitution to the Resolution Trust Corporation. Brechtel and Gattuso timely appealed.
On appeal, both defendants challenge the sufficiency of the evidence and contend that the district court improperly permitted testimony regarding their violation of civil banking regulations. Brechtel further challenges the district court's refusal to: (1) dismiss counts of the indictment as multiplicitous, (2) permit his presentation of habit evidence, and (3) grant him a new trial. He also maintains that the statute of limitations barred his prosecution.
Brechtel first faults the district court's denial of his motion to dismiss portions of the indictment on multiplicity grounds. An indictment is multiplicitous if it charges a single offense in multiple counts,*fn2 thus raising the potential for multiple punishment for the same offense, implicating the fifth amendment double jeopardy clause.*fn3 Legislative intent typically is dispositive of the multiplicity inquiry. When considering an indictment charging separate offenses arising from a series of related acts, we must determine whether Congress intended separate punishments.*fn4 Where a defendant suffers convictions on multiplicitous counts, we must remand so that the government may dismiss improper charges and the trial court may resentence the defendant.*fn5 Like other determinations regarding double jeopardy, we review district court rulings on multiplicity claims de novo.*fn6
Brechtel suggests that the two loans to Yao constituted individual steps in an overarching scheme to procure improper benefit from EFS&L through sale of the Ames Farm parcel. By charging the two Yao transactions as separate offenses, Brechtel argues that the government improperly splintered a single offense. He claims that in United States v. Lemons,*fn7 we found that multiplicity tainted an indictment under identical circumstances. We are not persuaded.
Lemons involved a bank-fraud prosecution under 18 U.S.C. § 1344. The indictment charged Lemons with separate violations of § 1344 for each of eight occasions on which he indirectly received or caused the bank to disburse funds. We noted that, although Lemons improperly received and caused disbursement of bank funds on several occasions, his acts constituted a single execution of a fraudulent scheme. We thus concluded, relying on the language of § 1344, that the indictment charged a single violation in multiple counts.
Because of the differences between 18 U.S.C. § 1006 and § 1344 Lemons is not dispositive of the case at bar. Rather than punishing "execution . . . of a scheme or artifice to defraud," 18 U.S.C. § 1006 punishes bank officials who "receive . . . any money, profit, property, or benefits through any transaction, loan, commission, contract, or any other act of . . . [the] institution." This language suggests intent to punish receipt of improper benefit from individual transactions, rather than from overarching schemes. Brechtel ...