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United States v. Roberts

United States Court of Appeals, Eighth Circuit

February 5, 2018

United States of America, Plaintiff- Appellee
v.
Albert William Roberts, III, Defendant-Appellant

          Submitted: November 15, 2017

         Appeal from United States District Court for the Western District of Missouri - Kansas City.

          Before COLLOTON and GRUENDER, Circuit Judges, and HOLMES, [1] District Judge.

          HOLMES, District Judge.

         Albert William Roberts, III, appeals the judgment of the district court[2]denying his motion for judgment of acquittal and sentencing him to 48 months' imprisonment. We affirm.

         I.

         Roberts 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 count.

         The 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 payments.

         At 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 wire fraud.

         At 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' imprisonment.

         II.

         Roberts 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 disagree.

         "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).

         Pursuant 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 ...


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