                                                                          FILED
                                                 United States Court of Appeals
                      UNITED STATES COURT OF APPEALS     Tenth Circuit

                                   TENTH CIRCUIT
                                                                  December 19, 2011
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 10-3288
 v.                                            (D.C. No. 5:09-CR-40086-CM-1)
                                                           (D. Kan.)
 JAMES DEWEY MOSER,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and GORSUCH, Circuit Judges.


      Defendant-Appellant, James D. Moser, was convicted by a jury of

conspiracy to commit bankruptcy fraud in violation of 18 U.S.C. § 371 (Count 1),

bankruptcy fraud in violation of 18 U.S.C. §§ 2, 152(1) (Counts 2-8), and

bankruptcy fraud in violation of 18 U.S.C. §§ 2, 157 (Count 10). He was

sentenced to 121 months’ imprisonment. Mr. Moser appeals, arguing that Counts

3-8 of the indictment were multiplicitous, and that there was insufficient evidence

to convict him on Count 2. Our jurisdiction arises under 28 U.S.C. § 1291 and we



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
affirm.



                                    Background

      This case involves sixteen acres of land and a barn located on that land in

Johnson County, Kansas, owned by Jeffrey Miller (Miller Enterprises). Aplt. Br.

2. Miller Enterprises leased the land and barn to Hallmark Arabian Farms LLC

(HAF), whose employees offered riding lessons and cared for boarded horses. Id.

Mr. Moser was a member and manager of HAF. HAF entered into a lease and

option agreement with Miller Enterprises on August 1, 2003, 1 R. 203-11, and

was behind on its lease payments and in default of the terms of the option by July

2004. Aplt. Br. 2. On March 11, 2005, Miller Enterprises filed proceedings to

evict HAF due to unpaid rent in the amount of $64,000.00. Id. at 2-3; 1 R. 340-

44, 356.

                               Chapter 7 Proceeding

      On April 27, 2005, Mr. Moser, and his wife, Doris Moser, filed a voluntary

Chapter 7 bankruptcy petition. In a Chapter 7 case, the debtor must disclose all

assets and liabilities in bankruptcy schedules and on a Statement of Financial

Affairs (SOFA). The petition and schedules are signed by the debtor under

penalty of perjury. In a Chapter 7 case, a trustee is appointed to recover the

debtor’s assets and to pay off creditors. The trustee also holds a “section 341

hearing” where the creditors meet and examine the debtor under oath regarding

                                        -2-
the information contained in the schedules and SOFA. Mr. Moser’s trustee,

David Seitter, conducted section 341 hearings on June 20, 2005 and September

13, 2005. Mr. Moser signed an Acknowledgment of Debtor Responsibilities on

June 17, 2005—stating that he understood his legal obligation to report to the

trustee about all assets and creditors, and to cooperate with the trustee during his

case. 2 Supp. R. on Appeal, Govt. Ex. 1-8. Thereafter, on June 24, 2005, Mr.

Moser entered into a sub-lease agreement with Mr. Tom Heshion, leasing him

stalls on the property for $3,500 per month and selling certain tools, machinery,

and furniture to him for $5,000. 2 Supp. R. on Appeal, Govt. Ex. 3-1. He did not

disclose this agreement to his trustee. Mr. Moser received a discharge of debt on

May 17, 2006. Scott Goldstein, an attorney who worked with Mr. Seitter and

assisted him on the case, testified that at the time of discharge, there continued to

be confusion regarding Mr. Moser’s assets, partially due to his unwillingness to

be forthright.

      On the SOFA, Mr. Moser listed a transfer to Jeff Miller in October 2004 of

“Gold and Silver Coins and Collectible Stamps” valued at $125,000. 1 R. 213.

At trial, Mr. Goldstein explained the difference between a transfer and a pledge of

property—a transfer indicates that the debtor no longer has control of the

property, a pledge as collateral indicates that the debtor still owns the property,

but that it is subject to a lien or security interest. 3 R. 74-75. Over time, Mr.

Moser equivocated on whether the stamps or coins were returned to him. Id. at

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85. Mr. Goldstein eventually learned from Mr. Miller’s attorney that all of these

items had been returned to Mr. Moser. Id. at 85-86.

      Mr. Moser also disclosed on his schedules that he held a stock interest of

unknown value in HAF, 1 R. 215, but failed to disclose that he also owned an

option to purchase the real property on which HAF was located from Mr. Miller.

The option to purchase the 16.5 acres, entered into on August 1, 2003, was valued

at $1.5 million. 1 R. 331.

      Mr. David Seitter, as trustee, testified that he did not find out about the

assignment or pledging of collateral of gold and silver coins until December

2005, at the earliest. 3 R. 285-86. He also felt that since HAF was listed on the

schedules as having an unknown value, he needed to further investigate its value.

Id. at 287, 313. The initial 341 hearing on June 20, 2005 did not answer all of

Mr. Seitter’s questions, so a second was scheduled on September 13, 2005. In

this hearing, Mr. Moser did not disclose that he had reached a confidential

settlement agreement ending the pending lawsuit with Mr. Miller on August 31,

2005—only two weeks earlier. 2 Supp. R. on Appeal, Govt. Ex. 5-1. Mr. Seitter

did not find out about the settlement until he received a letter from Mr. Moser’s

bankruptcy attorney on or about November 29, 2005. 2 Supp. R. on Appeal,

Govt. Ex. 5-4. The letter disclosed the settlement terms, giving HAF an option to

purchase the real estate for $1,140,000 before October 15, 2005. Id. Mr. Moser

also signed an “Acknowledgment, Receipt of Collateral and Release” on August

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31, 2005, providing that all of the property he had delivered to Mr. Miller for

purposes of securing obligations was returned to him. 2 Supp. R. on Appeal,

Govt. Ex. 5-2. On October 25, 2005, HAF assigned the option to purchase the

land, 2 Supp. R. on Appeal, Govt. Ex. 6-1, to Malcolm Knarr. 2 Supp. R. on

Appeal, Govt. Ex. 6-2. In return, Mr. and Mrs. Moser could choose between a

50% equity position in the real property, or a commission. 2 Supp. R. on Appeal,

Govt. Ex. 7-1. HAF also entered into a sublease agreement whereby Obeyan

Arabian Farms and Thomas Heshion were to pay a security deposit in the amount

of $5,000 to HAF. 2 Supp. R. on Appeal, Govt. Ex. 8-2.

                               Chapter 13 Proceeding

      Mr. Moser filed a Chapter 13 bankruptcy petition on April 3, 2007. 2

Supp. R. on Appeal, Govt. Ex. 10-5. In a Chapter 13 proceeding, a debtor

proposes to repay creditors through a plan. Id. Mr. William Griffin was

appointed trustee in this case. In the Chapter 13 petition, Mr. Moser asserted that

he had a 50% equity position in the real property that was the subject of the

option, with an estimated market value of $1,550,000, but did not mention coins

or stamps. Id.

      On May 9, 2007, Mr. Griffin conducted a 341 hearing where he questioned

Mr. Moser about his equity position in the option, and the status of any coins or

stamps. 3 R. 407-09. At this hearing, Mr. Moser testified that he had received

some of the coins back from Mr. Miller, but not all of them. Id. at 417-18.

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Initially, he had not made reference on the schedules to coins or stamps, but he

amended the SOFA after the hearing to include a transfer to Miller in 2004 of

coins and stamps valued at $10,000. Id. at 402; Ex. 10-6.

      Prior to sentencing, Mr. Moser filed a motion to impose a single

punishment for his convictions on Counts 2-8 and to vacate Counts 3-8 on the

basis that the convictions were multiplicitous. 1 R. 282-292. The district court

denied the motion, holding that each charge was based on a distinct act of

concealment, each occurring at different time after the duty to disclose had arisen.

Sent. Hr’g –Part 1 at 3-5.



                                     Discussion

      We review claims of multiplicity de novo. See United States v. Johnson,

130 F.3d 1420, 1424 (10th Cir. 1997). “Where multiple counts for which a

defendant is convicted cover the same criminal behavior, our review is limited to

whether Congress intended multiple convictions and sentences under the

statutes.” United States v. Morehead, 959 F.2d 1489, 1506 (10th Cir. 1992), aff’d

on rehearing sub nom. United States v. Hill, 971 F.2d 1461 (10th Cir. 1992) (en

banc). Our review of the denial of a motion for judgment of acquittal is also de

novo. See United States v. Irvin, 656 F.3d 1151, 1162 (10th Cir. 2011). We view

the evidence in the light most favorable to the government and ask whether “any

rational trier of fact could have found the defendant guilty of the crime beyond a

                                        -6-
reasonable doubt.” Id.

A.    Counts 3-8

      Mr. Moser contends that Counts 3-8 of his indictment are multiplicitous.

Aplt. Br. 11-18. “Multiplicitous counts—those which are based on the same

criminal behavior—are improper because they allow multiple punishments for a

single criminal offense.” United States v. McIntosh, 124 F.3d 1330, 1336 (10th

Cir. 1997). In McIntosh, this court found that Count 3, charging defendant with

bankruptcy fraud by concealment in violation of 18 U.S.C. § 152(7) for failure to

disclose a fee, and Count 13, charging him with making a false statement in

violation of 18 U.S.C. § 152(3), were multiplicitous. Id. at 1336-37. The court

reasoned that the defendant had an obligation to disclose the fee he received, but

“[i]nstead of making the required disclosure—which would have avoided the

charges brought under Count 3—he made the false statement which is the subject

of Count 13.” See id. at 1337; see also United States v. Montilla Ambrosiani, 610

F.2d 65, 68 (1st Cir. 1979) (calling charges of concealment and false statement

for the same act “another name for the same rose”). Since the defendant

“committed both offenses charged with the same act,” the charges were

multiplicitous. See McIntosh, 124 F.3d at 1337.

      In United States v. Sturmoski, the defendant was sentenced to two

consecutive thirty-year sentences for two convictions under 18 U.S.C. § 924(c).

971 F.2d 452, 460 (10th Cir. 1992). He was convicted of maintaining a place to

                                       -7-
manufacture a controlled substance [Count III], attempting to manufacture a

controlled substance [Count IV], carrying and using a firearm to facilitate

maintaining an establishment for the purpose of methamphetamine manufacture

[Count V], and carrying and using a firearm to facilitate the attempt to

manufacture methamphetamine [Count VI]. Id. at 460-61. He argued that the

convictions punished him twice for the possession of a firearm in the commission

of only one offense, and that maintaining a place to manufacture

methamphetamine inherently suggests an attempt to manufacture. Id. at 461. The

court stated that “[t]wo separate convictions . . . can arise from an essentially

identical set of facts as long as double jeopardy is not implicated.” Id.

      The court analyzed whether Congress intended convictions and sentences

for different crimes based upon the same underlying offenses. Id. First, a court

should look to the plain language of the statute, then to legislative history. Id. If

legislative intent is unclear, a court must apply the “rule of statutory

construction” from Blockburger v. United States, 284 U.S. 299 (1932). Id. The

Blockburger rule states that “where the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be applied to determine

whether there are two offenses or only one, is whether each provision requires

proof of a fact which the other does not.” Blockburger, 284 U.S. at 304. In

Sturmoski, the plain language and relevant legislative history strongly indicated

that Congress intended to create a new crime that would punish the use of

                                         -8-
property for manufacturing narcotics, as distinct from statutes criminalizing mere

possession and manufacture of controlled substances. 971 F.2d at 461-62.

      Turning to the concealment in this case, we note that other circuits have

clearly stated that “[w]hen the concealment of assets belonging to the bankrupt

occurs after a receiver or Trustee has been appointed . . . each separate act of

concealment is a separate violation of [Section 152].” See United States v. Moss,

562 F.2d 155, 160 (2d Cir. 1977). The Moss court explained:

      In each such instance there is a separate act, taken at a discrete time,
      accompanied by the requisite intent. Any other rule would permit a
      defendant who has committed a first concealment to steal more on the
      theory that he would never become a sheep but always remain a lamb.
      It is not in the interest of deterrence to permit a multiplication of
      criminal acts to be treated as a bonus for the criminal actor free from
      additional penalty.

Id. In Moss, the court found that the defendant could be charged separately for

the conversion of checks received on three separate occasions after the

bankruptcy proceeding began. Id. Defendant could also be charged for the

concealment of a fork-lift truck and the illegal transfer of three Benchmaster

presses at the time of an auction sale of inventory. Id. Similarly, the Ninth

Circuit held in United States v. Kaldenberg that each separate act of concealment

could be charged, and punished, separately. 429 F.2d 161, 164 (9th Cir. 1970).

In that case, a party in bankruptcy failed to disclose rental payments he received

from tenants after a receiver had been appointed. Id. at 162. The defendant

argued that the “receipt and retention of the seven different payments constituted

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but one crime.” Id. The court disagreed, however, and found that “[e]ach time

appellant received the rental payment a new set of facts arose and he was

confronted with a new decision on whether to transfer the new assets to the

receiver or to conceal them.” Id. Finally, the Eleventh Circuit held in United

States v. Melton, 763 F.2d 401 (11th Cir. 1985), that the concealment of two

separate automobiles from a bankruptcy trustee constituted two separate offenses.

Id. at 402. The court stated that “[i]f successive impulses are separately given,

even though all unite in swelling a common stream of action, separate indictments

lie.” Id. (quoting Blockburger, 284 U.S. at 302).

      Mr. Moser claims that several of the Counts charge him with committing

the same act of concealment. For example, he alleges that the lease to Mr.

Heshion, charged in Counts 3 and 8, and the assignment of the Option in Counts

4, 6, and 7 constitute the same act of concealing the lease and option of August 1,

2003, charged in Count 2. Aplt. Rep. Br. 2-6. More specifically, Mr. Moser

claims that the document supporting Count 3 stated the parties’ intent to enter

into a sublease of the facilities, and that Count 8 is the actual sublease. Id. at 6.

Moreover, he alleges that the assignment of the settlement agreement to Mr.

Knarr required three documents—the contents of which are charged in separate

Counts. Id. at 7.

      In reality, Counts 3-8 charged Mr. Moser with separate concealments of

different property interests on different dates. See Indictment, at 6-7, United

                                         - 10 -
States v. Moser, No. 06-40068-07-JAR, 2010 WL 2757281 (D. Kan. Jul. 12,

2010). According to the rule in Blockburger, where each offense requires proof

of a different act, each concealment can be charged separately. 284 U.S. at 304.

Similarly, if this court were to follow the precedent from different circuits, the

outcome would be the same. Like the defendant in Kaldenberg who accepted

separate rent payments, Mr. Moser made separate decisions to conceal additional

agreements and assets from his trustee, though they related to the same parcel of

land—each a distinct act. Unlike the defendant in McIntosh, Mr. Moser was not

charged for two separate crimes based on the same exact action. Instead, he

concealed various property interests over the course of several months in 2005.

For example, the agreement charged in Count 3 entitled Mr. Moser to a monthly

rent, plus additional income for the sale of personal property and a consulting fee.

2 Supp. R. on Appeal, Govt. Ex. 3-1. The charge in Count 8 is based on a

document signed months later, entitling Mr. Moser to a security deposit in the

amount of $5,000. 2 Supp. R. on Appeal, Govt. Ex. 8-2. Neither of these were

reported to his trustee. Similarly, all of the other Counts charge that Mr. Moser

received separate, additional income or consideration, although the documents

may have been related to the same parcel of land. Therefore, the district court

was correct and Counts 3-8 are not multiplicitous.

B.    Motion for Judgment of Acquittal on Count 2

      Mr. Moser filed a motion for judgment of acquittal as to all counts of

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conviction, 1 R. 168-69, but only appeals as to Count 2. Aplt. Br. 18. He claims

that “[t]here was no evidence presented at trial that would lead a reasonable jury

to find he willfully concealed information . . . .” Id. Before the district court,

Mr. Moser argued that the counts in the indictment concern only business assets

of HAF, and not his own personal assets. 1 R. 170. Therefore, he claims that he

was under no obligation to report these assets to the trustee. Id. Count 2 alleges

that Mr. Moser failed to include in his bankruptcy schedules an option to purchase

real property and $125,000 in gold and silver coins and collectable stamps

pledged as collateral and eventually returned to him. See Indictment, at 6.

      As noted previously, given our standard of review, if a rational trier of fact

could have found that the option and/or the coins and stamps were part of the

bankruptcy estate, the evidence is sufficient. Further, “when a jury returns a

guilty verdict on an indictment charging several acts in the conjunctive . . . the

verdict stands if the evidence is sufficient with respect to any one of the acts

charged.” See Griffin v. United States, 502 U.S. 46, 56-57 (1991); see also

United States v. Fredette, 315 F.3d 1235, 1243 (10th Cir. 2003). Here, Count 2

charged Mr. Moser with concealing both the option to purchase the real property

for $1,400,000 and the $125,000 in gold and silver coins and collectable stamps.

See Indictment, at 6. The jury’s general verdict found Mr. Moser guilty of Count




                                         - 12 -
2. 1 R. 165. Based on the rule in Griffin 1, if any rational trier of fact could have

found concealment of one of the two assets we may affirm without reaching the

other asset. See United States v. Lanoue, 71 F.3d 966, 982-83 (1st Cir. 1995)

(holding that where three possible conspiracies were charged in the same count,

and there was sufficient evidence to support one, there was no need to reach

sufficiency claims for the other conspiracies). Therefore, since we find sufficient

evidence to support a conviction based on the concealment of the coins and

stamps, it is unnecessary to address concealment of the option.

      Ample evidence suggests that Mr. Moser concealed his pledge of the coins

and stamps as collateral. In his Chapter 7 SOFA, Mr. Moser listed that he had

transferred $125,000 worth of coins and collectable stamps to Mr. Miller in

October 2004. 2 Supp. R. on Appeal, Govt. Ex. 1-3, p. 5. He did not indicate

that it was pledged as collateral. Yet, the coins and stamps were transferred to

Mr. Miller as collateral, and many documents preceding the Chapter 7 bankruptcy

petition called it such. 2 Supp. R. on Appeal, Govt. Ex. 2-2 (“WHEREAS, it is

necessary to transfer certain assets into the Corporation in order that the

Corporation can be collateralized on funds it is loaning James D. Moser . . .”);

Ex. 2-3 (document entitled “Collateral for Rent of 12700 W 151st Street Hallmark


      1
         In Griffin, the Supreme Court held that when a defendant is charged with
a conspiracy alleged to have two objects, but is implicated in only one, a general
guilty verdict may be upheld even when evidence for one object was insufficient.
502 U.S. at 47-48.

                                        - 13 -
Arabian Farms” and pledging silver and gold in the amount of $30,000”); Ex. 2-4

(“Mr. Moser’s collateral consisted of valuable collectible stamps, valuable

collectible coins, bullion and other collectible valuables. On that evening, there

is no question but that Mr. Moser delivered over $60,000 worth of such assets to

Mr. Miller and Mr. Middleton in return for Mr. Miller’s willingness to consider a

loan . . . .”). Moreover, On August 31, 2005, Mr. Moser signed an

“Acknowledgment, Receipt of Collateral and Release” agreeing that all property

previously delivered to Miller Enterprises, Inc., had been returned in the same

condition as when it was transferred. 2 Supp. R. on Appeal, Govt. Ex. 5-2. Mr.

Moser did not disclose to his trustee that the collateral had been returned.

Furthermore, an email from Miller Enterprises, Inc.’s attorney, Kristie Orme,

dated August 30, 2005, stated that it was her understanding that “the collateral is

the personal property of Hallmark’s Manager, James D. Moser, who is in

bankruptcy.” 2 Supp. R. on Appeal, Govt. Ex. 2-9. She stated that Mr. Miller

was willing to return the collateral so that Mr. Moser could disclose it to his

bankruptcy trustee. Id. Mr. Moser was examined under oath at his second 341

hearing on September 13, 2005—nearly two weeks after receiving the returned

property. 2 Supp. R. on Appeal, Govt. Ex. 1-5A. Mr. Moser never disclosed that

the collateral had been returned. Id.

      Mr. Moser also failed to disclose the return of all of the coins and stamps in

his Chapter 13 pleadings. 2 Supp. R. on Appeal, Govt. Ex. 10-5. At his 341

                                        - 14 -
hearing for the Chapter 13 proceedings on May 9, 2007, Mr. Moser admitted that

he pledged the coins and stamps as collateral. 2 Supp. R. on Appeal, Govt. Ex. 1-

10A, 19:45-19:49. He also claimed that he had not received all of the coins back

from Mr. Miller, Id. at 20:54-21:08, but that “some” of the stamps had been

returned. Id. at 20:19, 29:01. After this hearing, Mr. Moser amended his SOFA

to include coins and stamps valued at $10,000 transferred to Mr. Miller. 2 Supp.

R. on Appeal, Govt. Ex. 10-6. He had previously reported their value as

$125,000. 2 Supp. R. on Appeal, Govt. Ex. 1-3. Mr. Moser’s statements and

SOFAs in the Chapter 13 case contradicted his “Acknowledgment, Receipt of

Collateral and Release,” 2 Supp. R. on Appeal, Govt. Ex. 5-2, which stated that

he received back all personal property delivered to Mr. Miller on August 31,

2005—property that had originally been valued at much more than $10,000. 2

Supp. R. on Appeal, Govt. Exs. 2-2. 2-3, 2-4, 2-6. Therefore, based on the

evidence, a reasonable trier of fact could have found Mr. Moser guilty of

bankruptcy fraud for concealing the coins and stamps beyond a reasonable doubt.

      AFFIRMED.



                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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