Submitted: November 15, 2017
from United States District Court for the Western District of
Missouri - Kansas City.
COLLOTON and GRUENDER, Circuit Judges, and HOLMES,  District
HOLMES, District Judge.
William Roberts, III, appeals the judgment of the district
courtdenying his motion for judgment of
acquittal and sentencing him to 48 months' imprisonment.
was charged with one count of conspiracy to commit wire fraud
and with four separate counts of wire fraud. The separate
instances of wire fraud were based on transactions carried
out during the course of the conspiracy charged in the first
charges were based on Roberts' conduct in numerous real
estate transactions. Roberts purchased 12 homes from the same
seller, Gary Penrod, and obtained loans from various lenders
for each home. On loan applications and closing documents,
Roberts failed to report all properties he owned, recorded
substantially different income levels, and claimed he would
be an owner-occupant for four separate properties.
Additionally, Roberts and Penrod never negotiated the sale
price, but Roberts generally purchased the homes at list
price. In those instances where his lender would not approve
a loan at list price, Roberts purchased the homes for some
lesser amount for which a loan would be approved. Subsequent
to the closing of the purchases, Roberts received payments
from Penrod that covered closing costs. Roberts also received
payments from Penrod that Roberts characterized as profit
sharing, but that the government viewed as kickbacks for
Roberts' participation in the wire fraud conspiracy.
However they should be characterized, Roberts filed no
supplemental closing documents disclosing any of these
trial, Roberts moved for judgment of acquittal. The motion
was denied. The jury acquitted Roberts of the conspiracy
charge but found him guilty of the four separate counts of
sentencing, Roberts objected to the district court's use
of acquitted conduct to determine the loss amount and the
number of victims. The district court overruled Roberts'
objections and calculated that his sentencing range under the
United States Sentencing Guidelines was 70-87 months'
imprisonment. The district court then varied below the
Guidelines and sentenced Roberts to 48 months'
contends that the district court erred in denying his motion
for judgment of acquittal because the government presented
insufficient evidence to sustain a conviction on the
substantive wire fraud counts. Specifically, he argues that
"the government failed to demonstrate that any omission
by [Roberts] on any loan applications was material to the
lender's decision to extend the loans in question, or
that such omissions were intended to defraud." We
review de novo a district court's denial of a motion for
judgment of acquittal." United States v.
McAtee, 481 F.3d 1099, 1104 (8th Cir. 2007). "We
view the evidence in the light most favorable to the
jury's verdict and we draw all reasonable inferences in
the government's favor." Id. "[W]e
will uphold the verdict if there is any interpretation of the
evidence that could lead a reasonable-minded jury to find the
defendant guilty beyond a reasonable doubt." United
States v. Cole, 525 F.3d 656, 661 (8th Cir. 2008).
to 18 U.S.C. § 1343, to prove wire fraud, the government
must prove (1) intent to defraud, (2) participation in a
scheme to defraud, and (3) the use of a wire in furtherance
of the fraudulent scheme. United States v. Stacks,
821 F.3d 1038, 1045 (8th Cir. 2016). The false or fraudulent
representation must be material. United States v.
Cole, 721 F.3d 1016, 1021 (8th Cir. 2013). "A
misrepresentation is material if it is ...