United States v. Fred De La Mata, 266 F.3d 1275, 11th Cir. (2001) _ Fiduciary _ Money Laundering money laundering usa

[copyrighted material omitted][copyrighted material omitted] appeals from the united states district court for the southern district of florida, D.C. Docket no. 92-00230 CR-DMM before ANDERSON, chief judge, RONEY and FAY, circuit judges . FAY, circuit judge: 1 fred de la mata, manuel A. Calas, oscar castil la and enrique fernandez (appellants) appeal their criminal convictions and sentences for bank fraud in violation of 18 U.S.C. § 1344, conspiracy to defraud the united states in violation of 18 U.S.C. § 371, misapplication of bank funds, in violation of 18 U.S.C. § 656, making false statements to a federally insured financial institution, in violation of 18 U.S.C. § 1014, money laundering, in violation of 18 U.S.C. § 1956, making or causing to be made false entries, in violation of 18 U.S.C.

§ 1005, and engaging and conspiring to engage in a pattern of racketeering activities in violation of 18 U.S.C.Money laundering usa §§ 1962(c) and(d). Appellants contend that the ex post facto clause barred their prosecution, that the indictment and jury instructions were fatally defective, that there was insufficient evidence to support their convictions and that the discovery of new evidence mandated the grant of a new trial. We find that appellants’ convictions on two counts of bank fraud violated the ex post factoclause, but affirm their convictions and sentences in all other respects.

I. Background 2 the charges arose out of several transactions involving the republic national bank (RNB or the bank), a nationally chartered financial institution headquartered in dade county, florida. We summarize the facts, viewed in the light most favorable to the jury’s verdict. 3 de la mata, calas, and castilla (hereinafter the bank insiders) were employed by RNB prior to 1983 until they resigned in the fall of 1988.Money laundering usa de la mata served as RNB’s deputy president until 1985, thereafter as president and chief operating officer, and at all times a member of the board of directors. Calas served as the RNB’s senior vice president until july 1988, and thereafter as executive vice president. Castilla was senior vice president during the entire period. In addition, de la mata, calas and castilla were all members of RNB’s loan committee. Fernandez was a local real estate speculator, ostensibly unconnected with RNB. A. The bank branch transactions 1. The westlands branch 4 in may 1983, calas retained attorney anthony silva to act as trustee in the purchase of certain real property located in hialeah, florida (hereinafter the westlands). Calas, through silva, obtained a contract to purchase the tract for $325,000, and provided silva with the money for the initial deposit. Calas also directed silva to form a corporation called hialeah properties, inc., for the purpose of acquiring the westlands property.Money laundering usa th e corporation’s shares were initially issued in the name of daniel blanco, but that stock issuance was later voided and the shares were divided among de la mata (50%), calas (25%), and castilla (25%). Calas approached daniel blanco to head the corporation, which blanco understood to be a ceremonial position since he would not have a financial or operational stake in the corporation. The purpose of his job, according to blanco, was to act as owner of the property in order to conceal calas’ involvement from RNB. 5 after procuring the purchase contract, calas proposed to luis botifoll, chairman of the board of RNB, that RNB acquire the westlands site for use as a branch banking facility. Calas did not disclose the bank insiders’ financial interest in the property. Silva testified that he also discussed the proposal with botifoll, fully aware that he was not to reveal the identities of the true parties in interest.Money laundering usa thereafter, calas arranged for botifoll to meet blanco, the purported

Owner of the westlands site, whereupon the two, on behalf of RNB and the trust, negotiated a 30 year lease with an option to purchase the site. The rent commenced at $6500 per month, and escalated each year according to the cost of living. A government expert witness testified at trial that RNB had paid $362,000 above the fair market rental value as of the date of indictment. 6 on july 21, 1982, RNB’s board of directors approved the lease botifoll had negotiated. De la mata participated in the vote, and concealed the bank insiders’ personal interest in the transaction. In this way, de la mata also caused RNB to fail to disclose, in the bank’s application to the office of the comptroller of the currency (OCC) to open a branch facility, the involvement of bank officers in the transaction. 2.Money laundering usa the little havana branch 7 in september 1983, fernandez obtained a purchase contract for $700,000 for a site in little havana consisting of a bank building (two ground leases) and its adjoining parking lot (fee simple lot). Fernandez obtained the purchase contract in the name of the fernandez land trust, an entity initially created for the benefit of fernandez but later secretly amended to include the bank insiders as named beneficiaries accordingly: de la mata 37-1/2%, calas 18 -3/4%, castilla 18-3/4% and fernandez 25%. Calas provided a substantial portion of the $70,000 that fernandez tendered as a down payment. 8 thereafter, de la mata proposed that RNB acquire the little havana site for use as a branch facility, and introduced fernandez to botifoll as the property’s owner. At an october 1983 meeting of the RNB directors, de la mata participated in discussions to acquire the little havana branch building, and initiated the motion to apply to the OCC for a license to open the branch.Money laundering usa ultimately, RNB agreed to lease the little havana site for three years at an annual rate of $156,000, and to pay $100,000 per year to maintain an option to purchase the building. 9 in december 1983, the RNB loan committee approved a $700,000 loan to the fernandez land trust, thus, completely underwriting the purchase of the little havana property. De la mata, calas and castilla all voted to approve the loan to the fernandez land trust while concealing their interest therein. In effect, the bank insiders caused RNB to misrepresent to the OCC in its branch opening application that no bank employees were involved in the transaction. 10 in august 1984, RNB needed additional parking for the little havana site. De