### The Honorable David S. Doty, United State s District Judge for 1 

### the District of Minnesota. ____________ No. 95-3625

____________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota Timothy Edward Graham, * * Appellant. *

____________ Submitted: May 16, 1996 Filed: October 15, 1996

____________ Before McMILLIAN, FAGG and BOWMAN, Circuit Judges.

____________ McMILLIAN, Circuit Judge.
Timothy

Edward Graham appeals from an amended judgment entered in th e United States District Court for th e District of Minnesota, United States 1 v. Graham , No. 4-93-1 34 (D. Minn. Oct. 5, 1995) (amended judgment), which followed our remand with directions in an earlier appeal. Id. , 60 F.3 d 463, 469 (8th Cir. 1995) ( Graham ). For reversal, defendant now argues tha t the district court (1) erred in denying his moti on for a new trial and (2)
err ed in permitting the government to elect which of two multiplicitou s counts to dismiss, in accordance with our directions on remand. For the reasons discussed below, we affirm.

### The bankrup tcy court later converted the case to a Chapter 7 2 

### proceeding. -2- 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 an d procedural background. Defendant is a former attorney who owned a n undivided one-half interest in a series of apart ment buildings referred to as the Megra Properti es. In 1991, a judgment creditor of defendant filed
a judgmen t lien against the Megra Properties and received a writ o f 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 Chapte r 11 bankruptcy, thus preventing the sale and forcing the judgment creditor 2 to become a bankruptcy creditor. Defendant thenfailed to disclose in his schedules A and B his interest in the Megra Properties. Defendant took th e position in the bankruptcy proceedings that he had transferred his interes t in the Megra Properties to an irrevocable trust in his son's name o n December 28, 1989, more than one year before his bankruptcy filing. O n three separate occasions, when questioned in the presence of his creditors , defendant claimed that he had transferred his interest in the Megr a Properties to his son's irrevocable trust on Dec ember 28, 1989. Defendant prov ided a document which he claimed was the original trust documen t reflecting the December 28, 1989, transfer of interest.

On Au gust 25, 1993, defendant was charged with one count o f concealing assets in a bankruptcy case (Count I) and three separate counts of knowingly and fraudulently making a false statement in a bankruptcy cas e (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 tha t they were multiplicitous. The district court de nied his motion. The case went to trial in

### -3-

December 1993. Evidence presented at trial prov ed 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 fraudulentl y 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 i n denying his motion to dismiss two of the three f alse statement counts. In
an opinion dated July 14, 1995, we agreed with defendant's multiplicit y argument and reversed and remanded on that limited basis. We instructed the di strict court as follows: "Graham's convictions are reversed an d 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 th e defendant." Graham , 60 F.3d at 469.
Following our limite d remand, the government moved to dismiss Count III of th e indictment, and the district court granted the motion o n September 12, 1995. On October 2, 1995, defendant moved in the district court fo r a new trial raising for the first time the argument that th e district court had erred in failing to instruct the jury that "materiality " is an ele ment of a § 152 false statement offense. The district cour t 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 I V. The district court entered an amended judgment, and defendan t appealed.

II. Defendant first argu es 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, wa s decided on June 19, 1995, eighteen months after the trial in th e present case. We note that our holding today does not prejudic e defendant's right to assert his argument based upon Gaudin in a petition brough t pursuant to 28 U.S.C. § 2255. -4- should have been instructed on "materiality" as an element of the offense. He maintains that materiality is an essential element of a § 152 fals e statement offense under United States v. Gaudin , 115 S. Ct. 2310 (1995), in which the Supreme Court held that the governm ent 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 fac t made to the United St ates). The district court denied defendant's motion for a new trial on the ground, among others, that defendant's new tria l mot ion 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 pro cedurally 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 whic h count he would stand convicted of." Brief for Appellant at 7
. He fur ther claims "[t]his was done in compliance with Rule 33 of th e 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 declin e to address the merits of defendant's argument. Rule 33 of the Federa l Rules of Criminal Pro cedure 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 withi n 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 guilt y verdi ct to file his motion for a new trial or to obtain an extension o f time in which to file . Defendant did neither during the seven days after the jury reached its verdict. Moreover, our 3

### -5-

limi ted remand conditionally vacated defendant's convictions -- or, i n other words, set aside the judgment -- for the purpose of allowing th e governmen t to elect which count to dismiss and which count to "leave i n effect." Graham , 60 F.3d at 469. We did not se t aside the jury's verdict
or findin gs of guilt. Therefore, our limited remand did not impact th e operation of Rule 33 in the present case. Second, even if we were to agre e with defendant's posi tion (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 stil l have been untimely. The district court's order was entered o n September 12, 1995; d efendant filed his motion for a new trial on October 2, 1995, well over seven business days later.

III.

Def endant next argues that the district court erred in failing t o require t he government to elect Count IV for dismissal. On remand, th e gover nment moved to dismiss Count III. The district court granted th e government's motion and sentenced defendant on C ount 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 th e present case, the conduct charged in Count IV occurred later in time.
Upon review, we hold that the district court's grant of th e 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

### -6-

cou rt's dismissal of Count III upon the government's election under th e law-of-the-case doctrine, particularly because defendant has not shown tha t he has suffered any prejudice resulting from the decision to leave Count IV i n effect. See United States v. Bartsh , 69 F.3d 864, 866 (8th Cir
. 1995) (a decision in a prior appeal must be foll owed in a later proceeding unless a party introduces substantially different evidence or the prio r decisi on is clearly erroneous and works a manifest injustice), quotin g United States v. Callaway , 972 F.2d 904, 905 (8t h Cir. 1992) (per curiam); Uni ted 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 cour t is affirmed.
A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.