The Honorable David S. Doty, United States District Judge for 1

the District of Minnesota.

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No. 95-3625

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota

Timothy Edward Graham, *

*

Appellant. *

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 Submitted: May 16, 1996

 Filed: October 15, 1996

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Before McMILLIAN, FAGG and BOWMAN, Circuit Judges.

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McMILLIAN, Circuit Judge.

Timothy Edward Graham appeals from an amended judgment entered in the

United States District Court for the District of Minnesota, United States 1

v. Graham, No. 4-93-134 (D. Minn. Oct. 5, 1995) (amended judgment), which

followed our remand with directions in an earlier appeal. Id., 60 F.3d

463, 469 (8th Cir. 1995) (Graham). For reversal, defendant now argues that

the district court (1) erred in denying his motion for a new trial and (2)

erred in permitting the government to elect which of two multiplicitous

counts to dismiss, in accordance with our directions on remand. For the

reasons discussed below, we affirm.
 The bankruptcy court later converted the case to a Chapter 7 2

proceeding.

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I.

The underlying facts of this case are set forth in our prior opinion.

60 F.3d at 465-66. The following is a brief summary of the factual and

procedural background. Defendant is a former attorney who owned an

undivided one-half interest in a series of apartment buildings referred to

as the Megra Properties. In 1991, a judgment creditor of defendant filed

a judgment lien against the Megra Properties and received a writ of

execution. On November 26, 1991, the day before a court-ordered sheriff's

sale of the Megra Properties was to take place, defendant filed for Chapter

11 bankruptcy, thus preventing the sale and forcing the judgment creditor 2

to become a bankruptcy creditor. Defendant then failed to disclose in his

schedules A and B his interest in the Megra Properties. Defendant took the

position in the bankruptcy proceedings that he had transferred his interest

in the Megra Properties to an irrevocable trust in his son's name on

December 28, 1989, more than one year before his bankruptcy filing. On

three separate occasions, when questioned in the presence of his creditors,

defendant claimed that he had transferred his interest in the Megra

Properties to his son's irrevocable trust on December 28, 1989. Defendant

provided a document which he claimed was the original trust document

reflecting the December 28, 1989, transfer of interest. 

On August 25, 1993, defendant was charged with one count of

concealing assets in a bankruptcy case (Count I) and three separate counts

of knowingly and fraudulently making a false statement in a bankruptcy case

(Counts II, III, and IV), all in violation of 18 U.S.C. § 152. Defendant

moved to dismiss two of the three false statement counts on the ground that

they were multiplicitous. The district court denied his motion. The case

went to trial in
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December 1993. Evidence presented at trial proved that the trust document

upon which defendant had relied was not created until 1991. Defendant was

found guilty on Counts III and IV, each for knowingly and fraudulently

making a false statement in the bankruptcy case. He was sentenced to 30

months on each count, to run concurrently. He appealed from the judgment

and argued, among other things, that the district court had erred in

denying his motion to dismiss two of the three false statement counts. In

an opinion dated July 14, 1995, we agreed with defendant's multiplicity

argument and reversed and remanded on that limited basis. We instructed

the district court as follows: "Graham's convictions are reversed and

vacated. This case is remanded to the district court with directions to

order the government to elect which § 152 count of conviction it wishes to

leave in effect, after which the district court must resentence the

defendant." Graham, 60 F.3d at 469. 

Following our limited remand, the government moved to dismiss Count

III of the indictment, and the district court granted the motion on

September 12, 1995. On October 2, 1995, defendant moved in the district

court for a new trial raising for the first time the argument that the

district court had erred in failing to instruct the jury that "materiality"

is an element of a § 152 false statement offense. The district court

denied the motion. United States v. Graham, No. 4-93-134 (D. Minn. Oct.

5, 1995) (order). The district court sentenced defendant on the remaining

count (Count IV) to one 30-month prison term, the same sentence that the

district court had originally imposed concurrently on each of Counts III

and IV. The district court entered an amended judgment, and defendant

appealed.

II.

Defendant first argues that the district court erred in denying his

motion for a new trial on the ground that the jury
 Indeed, United States v. Gaudin, 115 S. Ct. 2310 (1995),

3

which provided the basis for defendant's new trial theory, was

decided on June 19, 1995, eighteen months after the trial in the

present case. We note that our holding today does not prejudice

defendant's right

to assert his argument based upon Gaudin in a petition brought

pursuant to 28 U.S.C. § 2255. 

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should have been instructed on "materiality" as an element of the offense.

He maintains that materiality is an essential element of a § 152 false

statement offense under United States v. Gaudin, 115 S. Ct. 2310 (1995),

in which the Supreme Court held that the government must prove materiality

of the alleged false statement when a defendant is charged with violating

18 U.S.C. § 1001 (false statements or entries regarding a material fact

made to the United States). The district court denied defendant's motion

for a new trial on the ground, among others, that defendant's new trial

motion was procedurally barred in light of this court's limited remand.

Defendant argues in the present appeal that his motion for a new trial was

not procedurally barred because he "filed a motion for a new trial in a

timely fashion as measured from the point where the District Court ruled

on which count he would stand convicted of." Brief for Appellant at 7.

He further claims "[t]his was done in compliance with Rule 33 of the

Federal Rules of Criminal Procedure." Id.

 

Upon review, we hold that the district court did not err in denying

defendant's motion for a new trial as untimely filed. We therefore decline

to address the merits of defendant's argument. Rule 33 of the Federal

Rules of Criminal Procedure states that a motion for a new trial based on

any ground other than newly discovered evidence "shall be made within 7

days after verdict or finding of guilty or within such further time as the

court may fix during the 7-day period." Defendant's contention that his

new trial motion was timely filed under Rule 33 fails for two reasons.

First, under Rule 33, defendant had seven days after the jury's guilty

verdict to file his motion for a new trial or to obtain an extension of

time in which to file. Defendant did neither during the seven days after

the jury reached its verdict. Moreover, our 3
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limited remand conditionally vacated defendant's convictions -- or, in

other words, set aside the judgment -- for the purpose of allowing the

government to elect which count to dismiss and which count to "leave in

effect." Graham, 60 F.3d at 469. We did not set aside the jury's verdict

or findings of guilt. Therefore, our limited remand did not impact the

operation of Rule 33 in the present case. Second, even if we were to agree

with defendant's position (which we do not) that his rights under Rule 33

were renewed at "the point where the District Court ruled on which count

he would stand convicted of," Brief for Appellant at 7, his motion would

still have been untimely. The district court's order was entered on

September 12, 1995; defendant filed his motion for a new trial on October

2, 1995, well over seven business days later.

III.

 

Defendant next argues that the district court erred in failing to

require the government to elect Count IV for dismissal. On remand, the

government moved to dismiss Count III. The district court granted the

government's motion and sentenced defendant on Count IV. Defendant argues

that, consistent with cases from this and other circuits, the proper count

to dismiss is the one that "creates" the multiplicity or, in other words,

the count based upon acts or events occurring later in time. In the

present case, the conduct charged in Count IV occurred later in time.

 

Upon review, we hold that the district court's grant of the

government's motion to dismiss Count III of the indictment was in complete

accordance with our prior opinion in Graham, 60 F.3d at 469 ("[t]he proper

course is to remand this case for resentencing and direct the government

to elect the false statement count that it wishes to leave in effect").

Therefore, we uphold the district
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court's dismissal of Count III upon the government's election under the

law-of-the-case doctrine, particularly because defendant has not shown that

he has suffered any prejudice resulting from the decision to leave Count

IV in effect. See United States v. Bartsh, 69 F.3d 864, 866 (8th Cir.

1995) (a decision in a prior appeal must be followed in a later proceeding

unless a party introduces substantially different evidence or the prior

decision is clearly erroneous and works a manifest injustice), quoting

United States v. Callaway, 972 F.2d 904, 905 (8th Cir. 1992) (per curiam);

United States v. Rosnow, 9 F.3d 728, 730 (8th Cir. 1993) (per curiam)

(same), cert. denied, 115 S. Ct. 120 (1994).

IV.

For the foregoing reasons, the amended judgment of the district court

is affirmed.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.