United States v. Eugene H. Mathison

157 F.3d 541
CourtCourt of Appeals for the Eighth Circuit
DecidedSeptember 2, 1998
Docket97-3599, 97-3600, 97-3602, 97-3603
StatusPublished
Cited by2 cases

This text of 157 F.3d 541 (United States v. Eugene H. Mathison) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Eugene H. Mathison, 157 F.3d 541 (8th Cir. 1998).

Opinions

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Eugene Mathison and his associates Perry Gobel, Robert Holmes, and Dean Chambers were indicted on numerous counts of conspiracy, see 18 U.S.C. § 371, mail fraud, see 18 U.S.C. § 1341, wire fraud, see 18 U.S.C. § 1343, perjury, see 18 U.S.C. § 1623(a), and money laundering, see 18 U.S.C. § 1956(a)(1), § 1957(a). The government alleged that Mr. Mathison operated three fraudulent investment schemes by himself and that the four defendants together operated a fourth. While operating the fourth investment group alone, the government charged, the defendants defrauded family, friends, and acquaintances of nearly $1 million.

Mr. Mathison’s investment groups operated as a simple Ponzi scheme. The first limited group of investors formed the Northern States Investment Group. Mr. Mathison convinced his victims that they were investing with a Kansas City broker who had devised a way to make exceptional returns in the commodities market. Once investors gave Mr. Mathison their money, he began mailing statements showing monthly rates of return from about 7 percent to 17.6 percent. Mr. Mathison never invested the money, however; instead, he deposited the money [545]*545into a bank account and paid out most of it to himself and his wife. Some small amounts of money were returned to investors.

The next two investment groups, Goldstar and Universal, operated in substantially the same manner as Northern States. In their promotional materials, Mr. Mathison reported the paper success of the first group and all but promised the same success for the new ones. Goldstar collected $102,500 and Universal collected $171,000. Again, no money was ever invested, and substantial payouts were made to Mr. Mathison and his wife from the groups’ funds.

In June, 1995, Mr. Mathison was arrested for crimes arising out of his activities with the first three groups. The government produced proof at trial that Mr. Chambers knew that Mr. Mathison had been arrested for fraud and for money laundering. Later that year, the four defendants formed the final relevant entity, the Perob Investment Group. By this time, the government was already investigating Mr. Mathison’s activities, and thus the final group’s organization was, the government alleged, calculated to conceal Mr. Mathison’s involvement. The government alleged also that Mr. Gobel and Mr. Holmes solicited friends and relatives to invest in the group, and that Mr. Chambers acted as the registered agent for the group, while Mr. Mathison continued to do the “investing” from behind the scenes. The defendants collected $947,000 from the Perob investors.

The government maintained at trial that Mr. Gobel and Mr. Holmes used the fake statements from the previous investment groups to lure victims to Perob. All four defendants received sizable amounts of money from Perob’s bank accounts. Mr. Mathi-son laundered some of this money by wiring it to an associate at a bank in Arizona, who then wired the money back to Mr. Mathison, or into another account, at his direction. Much of this laundered money was wired into accounts associated with the first three investment groups and wholly under Mr. Ma-thison’s control.

All four defendants were found guilty of conspiracy, mail fraud, and money laundering, and Mr. Mathison was convicted on five additional counts of wire fraud. Mr. Holmes was convicted in addition on one count of perjury. The trial court2 sentenced the defendants to lengthy prison terms and ordered them to make restitution. They urge reversal on a great number of diverse grounds. Because we find none of their arguments persuasive, we affirm the trial court’s judgments.

I.

Mr. Mathison asserts that the trial court was biased against him. He maintains that the judge should have recused himself from this case because Mr. Mathison had embarrassed and humiliated him during a deposition in a civil case several years earlier when the judge was in practice. Federal law requires a federal judge to disqualify himself or herself where “his impartiality might reasonably be questioned,” see 28 U.S.C. § 455(a), or where “he has a personal bias or prejudice concerning a party,” see 28 U.S.C. § 455(b)(1).

We find, after careful review, that Mr. Mathison waived his right to seek recusal from the trial court. We have held that claims under § 455 will not be considered unless they were timely made before the trial court. See United States v. Bauer, 19 F.3d 409, 414 (8th Cir.1994). In a letter that he sent to the trial court following some particularly adverse rulings, Mr. Mathison referred to the events that he now claims warranted a recusal. The letter indicated his opinion that the events alluded to might warrant the judge’s recusal, but nowhere did the letter actually seek recusal. We therefore believe that the trial court quite properly did not consider the letter to be a motion to recuse.

Mr. Mathison chose not to raise the matter of recusal before the trial court, although he plainly thought that he might have a basis for asking the judge to recuse. Mr. Mathi-son did not simply forfeit an objection by [546]*546mere inadvertent inaction; he made a conscious choice not to raise the objection. In these circumstances, it is plain to us that he has waived it. See United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

II.

Mr. Holmes and Mr. Chambers mount several challenges to the trial court’s refusal to sever their trials from Mr. Mathison’s. In counts 1-37, only Mr. Mathison was a defendant, and crimes arising out of only the first three of the four investment schemes were alleged. In counts 38-61, which concerned the fourth investment group, all four defendants were charged.

Although Mr. Holmes and Mr. Chambers moved for severance during a pretrial hearing, they did not renew the motion at the close of the government’s case or at the close of all of the evidence. Because of this omission, we review the denial of the motion for plain error only. See id. at 733-34, 113 S.Ct. 1770. To succeed on plain-error review of the denial of a motion to sever, a defendant must show an abuse of discretion by the trial court as well as “prejudice affecting his substantial rights and an extraordinary reason to reverse.” United States v. Rogers, 150 F.3d 851, 855-56 (8th Cir.1998); see also Fed.R.Crim.P. 14.

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