United States District Court, D. Nebraska
MEMORANDUM AND ORDER
John M. Gerrard United States District Judge.
The defendant has filed two post-verdict motions: a motion for judgment of acquittal pursuant to Fed. R. Crim. P. 29(c) (filing 184), and a motion for new trial pursuant to Fed. R. Crim. P. 33 (filing 186). For the reasons explained below, the Court will deny both motions, and this matter shall proceed to sentencin g as scheduled on February 24, 2016.
RULE 29(C) MOTION
On a motion for post-verdict acquittal, the Court views the evidence in the light most favorable to the government, resolving conflicts in the government's favor, and accepting all reasonable inferences that support the verdict. United States v. Scofield, 433 F.3d 580, 584-85 (8th Cir. 2006). The Court 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. Id.
The defendant was convicted of conspiracy to commit wire fraud affecting a financial institution or securities fraud, conspiracy to falsify bank entries, three counts of wire fraud affecting a financial institution, one count of securities fraud, and six counts of falsifying bank entries. Filing 146. The defendant contends that for each convicted crime, the evidence was insufficient to show he had the requisite knowledge or criminal intent. Filing 185 at 3. First, he argues that there is insufficient evidence to demonstrate he directed a plan to delay ordering appraisals on certain properties for the purpose of deferring recognition of loss. Filing 185 at 4. Second, he argues that there is insufficient evidence to demonstrate he directed a plan to modify existing loans to conceal recognition of loss. Filing 185 at 9. Third, he argues that evidence of his alleged acts of concealment, alleged management style, and compensation is not proper evidence from which to infer knowledge or criminal intent. Filing 185 at 11.
(a) Evidence that the defendant directed a plan to delay ordering appraisals
The defendant argues that the government did not produce sufficient evidence that he directed a plan to delay ordering appraisals in order to defer recognition of loss. Filing 185 at 4. He argues the evidence was insufficient for three reasons: because none of the defendant's alleged co-conspirators testified that he directed them to delay ordering appraisals, because he was not responsible for ordering appraisals, and because TierOne disclosed to the Office of Thrift Supervision (OTS) its practice of discounting older appraisals based on market information. Filing 185 at 5-6.
First, the defendant contends that none of his alleged co-conspirators testified that he directed a plan to delay appraisals. Filing 185 at 6. To begin with, for the purposes of Rule 29 analysis, it is not necessary for the evidence to show that the defendant directed the scheme. The jury was instructed- without objection from the defendant-that to find the defendant guilty of the conspiracy counts, it would have to find beyond a reasonable doubt that there was an agreement to commit the underlying offense, and that the defendant voluntarily and intentionally joined the agreement, knowing its purpose. See, filing 142 at 24-27; T2359-60; see also United States v. Hoelscher, 764 F.2d 491, 494 (8th Cir. 1985) (setting forth the elements of conspiracy). In other words, evidence of agreement, not direction, was required.
And the government has produced evidence sufficient for a reasonable jury to make that finding. Jim Laphen testified that he participated in a plan to delay appraisals in order to "delay the taking of losses that probably would have been required if we got newer appraisals." T395. Laphen testified that he had a conversation with the defendant about this plan "in which [the defendant] was aware and a part of the process" and agreed with the plan. T394-96. Similarly, Don Langford testified that Gale Furnas told him the defendant knew of the plan to delay appraisals to defer recognition of loss. T1069. Langford also testified that Furnas told him the plan was "not [Furnas's] plan" but that "he was getting direction from the corner offices." T1042. Langford testified that "Mr. Lundstrom had one corner office and Mr. Laphen had the other." T1042.
The defendant argues that this testimony from Laphen and Langford fails to support the verdict primarily for two reasons. First, the defendant argues that there is no "direct evidence on any communication between Mr. Lundstrom and any member of these departments" showing that he directed or participated in the plan. See filing 185 at 6-8. But the government may rely on circumstantial evidence to prove conspiracy, and need not establish an "express or formal" agreement. Hoelscher, 764 F.2d at 494. Second, the defendant argues that Langford and Laphen gave other testimony during the trial that is inconsistent with the testimony described above. Filing 185 at 6. However, it is the province of the jury to resolve inconsistencies and decide which testimony to believe. See United States v. Scofield, 433 F.3d 580, 585 (8th Cir. 2006).
Next, the defendant argues that the government's evidence is insufficient because the defendant was not responsible for ordering appraisals. Filing 185 at 5. For instance, Laphen testified that the decision whether to order appraisals ordinarily "would not have risen to executive management level." T397. However, this does not foreclose the likelihood that the defendant participated in a plan to delay appraisals; the jury was entitled to infer, based on the evidence described above, that although the defendant did not ordinarily participate in the ordering of appraisals, he did so on this particular occasion to delay recognition of losses.
Finally, the defendant contends that the government's evidence is insufficient because TierOne disclosed to the OTS its practice of discounting older appraisals based on market information. Filing 185 at 5-6. But even if this evidence could have permitted the jury to infer that the defendant did not agree to a plan to defer recognition of loss, the jury did not draw that inference. See United States v. Chatmon, 742 F.3d 350, 353 (8th Cir. 2014). When considering the sufficiency of the government's evidence on a Rule 29(c) motion, the Court may not re-weigh the evidence. United States v. Moe, 536 F.3d 825, 832 (8th Cir. 2008). The government's evidence "must be consistent with guilt, but [it] need not be inconsistent with any other reasonable hypothesis, and it is enough to convict if the entire body of evidence is sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty." United States v. Chavez, 230 F.3d 1089, 1090 (8th Cir. 2000).
(b) Evidence that the defendant directed a plan to modify existing loans
The defendant next argues that there is insufficient evidence to demonstrate he directed a plan to modify the Towne Vistas and Mansions at Canyon Creek loans without ordering new appraisals in order to conceal losses. See filing 185 at 9-10. According to the defendant, although he signed off on those loan modifications, nothing demonstrates that he knew or intended that doing so would conceal TierOne's losses on those properties. See filing 185 at 9-10. But, as discussed above, the government produced evidence that the defendant participated in a plan to conceal losses. And Laphen testified that the Towne Vistas and Canyon Creek loans were two of TierOne's largest loans, T492; T526, that the defendant was aware the appraisals for these properties were stale, T819-20; T645, and that when Laphen discussed the Towne Vistas modifications with the defendant, Laphen told the defendant that Laphen "wasn't sure we really even wanted to know what the value of ...