                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   March 8, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                        No. 10-3229
 v.
                                              (D.C. No. 5:06-CR-40068-JAR-7)
                                                          (D. Kan.)
 JAMES DEWEY MOSER,

               Defendant - Appellant.



                           ORDER AND JUDGMENT *


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


      Like many Americans James Moser hoped to make a few dollars in real

estate. Unlike most, Mr. Moser eventually found himself convicted of four counts

of bank fraud and one count of conspiracy. On appeal Mr. Moser argues that the

evidence the government produced against him at trial is legally insufficient to

support his convictions. But under our governing standard of review, Mr. Moser

faces a serious challenge. This court’s precedents require us to examine the trial

evidence against Mr. Moser in the light most favorable to the jury’s verdict and


      *
         This order and judgment is not binding precedent except under the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.
we may only reverse if we are persuaded no rational jury could have found him

guilty beyond a reasonable doubt. United States v. Rakes, 510 F.3d 1280, 1284

(10th Cir. 2007). Here we cannot say so much.

      Beginning with the substantive bank fraud counts, Mr. Moser contends that

he lacked an intent to deceive a bank or knowledge of any misrepresentation made

to a bank. See United States v. Rackley, 986 F.2d 1357, 1360-61 (10th Cir. 1993)

(bank fraud requires proof, among other things, “(1) that the defendant knowingly

executed or attempted to execute a scheme . . . to obtain property by means of

false or fraudulent pretenses . . . (2) that the defendant did so with the intent to

defraud”). The trial record, however, contains ample circumstantial evidence

suggesting the presence of both elements.

      The record shows that Mr. Moser partnered with Joseph Frey (now

deceased) to secure bank loans in order to buy a large number of homes from a

Kansas City builder, Jeffrey Miller. At the same time, the pair secretly arranged

for Mr. Miller to return some of the loan proceeds to Mr. Moser and his company.

These “kickbacks” provided substantial income to Mr. Moser and were either

never disclosed to the lending banks or were disguised as bogus fees. See, e.g.,

Exhibit 44L-1. To obtain the bank loans needed to purchase Mr. Miller’s

properties and the kickbacks that came with them, Mr. Frey, assisted by Mr.

Moser, engaged in still more deceptions, misrepresenting himself and his assets to

the lending banks in a variety of ways. On three loans, for example, Mr. Frey

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represented that he worked for and received a substantial income from Mr.

Moser’s company, this despite Mr. Frey’s wife’s testimony that he never did so.

Tr. at 1385.

      Of course, Mr. Moser denies knowing Mr. Frey misrepresented his

employment status. But even assuming he wasn’t in on this particular aspect of

the scheme the jury easily could have found he was in on many others. To win

the bank loans needed to purchase the Miller properties, for example, Mr. Frey

submitted paperwork purporting to show he already had a signed lease with a

prospective renter who promised to provide a steady stream of income from one

of the homes. Tr. at 1193 et seq. The lease purported to be between Mr. Frey —

repeatedly misspelled “Fry” — and Tony Hilger, and a copy of it was submitted

with each of the loan applications underlying Mr. Moser’s convictions. Tr. at

1335-37, 1195-98, 1208-1212; Exhibits 30T, 41E, 44E, 45E. At trial, however,

Mr. Hilger testified that he never entered into a lease with Mr. Frey and that the

signature on the lease was not his. Tr. at 1702-04. Neither, it turns out, did Mr.

Hilger even know Mr. Frey. Tr. at 1703. Mr. Hilger, however, did know Mr.

Moser. And Mr. Frey’s wife testified that it was Mr. Moser’s job to find

purported renters to lease the properties for Mr. Frey. Tr. at 1390. Consistent

with Mrs. Frey’s testimony, three copies of the lease bore the fax tag line of Mr.

Moser’s company. Exhibits 41E, 44E, 45E.




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      This evidence is enough to support the jury’s conclusion that Mr. Moser

was knowingly involved in the scheme to defraud the banks and that he intended

to defraud them. From Mr. Hilger’s testimony the jury could have concluded that

the leases were intentional lies aimed at deceiving the banks into thinking Mr.

Frey had at least one property rented and with it a steady income stream that

might help justify a loan. Mr. Moser’s knowing involvement likewise reasonably

follows from Mrs. Frey’s testimony about his role, from Mr. Hilger’s testimony

that he knew Mr. Moser but not Mr. Frey, from the fax tag line on three copies of

the lease, and perhaps from the evidence that Frey’s name was consistently

misspelled in the lease (arguably suggesting Mr. Frey didn’t author it). The jury

likewise had reason to believe that Mr. Moser had a motive for helping to mislead

the banks as he stood to profit from the scheme, including through the kickbacks

his company received. See United States v. Archer, --- F.3d ----, 2011 WL

4360013, at *8 (2d Cir. 2011) (sufficient evidence that defendant attorney, and

not solely his office manager, knowingly filed false visa applications for clients

where clients spoke little English and did not provide the false information, they

did not know the program’s requirements, they spoke with defendant, and

defendant responded “so what?” when confronted with one false application).

      Mr. Moser intimates that no adverse inferences should be drawn from Mrs.

Frey’s testimony because it was called into question on cross-examination. But

cross-examination didn’t call into question Mrs. Frey’s testimony that Mr. Moser

                                        -4-
was responsible for obtaining leases on the partners’ properties; to the contrary,

this testimony was elicited on cross. Even if cross-examination did call into

question other aspects of Mrs. Frey’s testimony, moreover, the jury was permitted

to find her credible in this respect, the only respect necessary to sustain Mr.

Moser’s conviction. Under our governing standards of review, a jury’s credibility

determination may be overturned “only if the testimony is inherently incredible

— that is, only if the events recounted by the witness were impossible ‘under the

laws of nature’ or the witness ‘physically could not have possibly observed’ the

events at issue.” United States v. Cardinas Garcia, 596 F.3d 788, 794 (10th Cir.

2010) (quoting United States v. Oliver, 278 F.3d 1035, 1043 (10th Cir. 2001)

(further quotation omitted)). And neither of those conditions is present here

because no one disputes that Mrs. Frey was at least possibly in a position to know

something about her husband’s business partners and activities.

      Separate and apart from whether he knowingly participated in the scheme

and intended to deceive lenders, Mr. Moser contends that his substantive bank

fraud convictions fail because the government didn’t prove that any of his

deceptive conduct was material to the banks’ decisions to lend Mr. Frey money.

A false statement is material for purposes of a bank fraud conviction, however, so

long as it is (merely) “capable of influencing a bank’s actions.” See United

States v. Akers, 215 F.3d 1089, 1101-02 (10th Cir. 2000) (quotation omitted)

(emphasis added). And here again the Hilger lease supplies sufficient evidence to

                                        -5-
support the jury’s verdict. Loan officers testified that the leases were normally

submitted with loan applications in order show that the borrower could guarantee

a reliable stream of rental income.   Tr. 1209-10; 1336-37. From this evidence a

reasonable jury could conclude that the Hilger lease appended to Mr. Frey’s loan

applications was at least capable of influencing a bank’s loan decision. Mr.

Moser’s reply to all this — that the government failed to prove other material

impacts flowing from the fraudulent scheme — is beside the point. The

government proved all the materiality it was required to prove when it showed

Mr. Moser’s participation in the creation of the Hilger lease was “capable of

influencing” the banks’ actions.

      We also conclude sufficient evidence existed to sustain Mr. Moser’s

conviction of conspiracy to commit bank fraud. For this charge, the jury had to

find that “(1) two or more persons agreed to violate the law, (2) the defendant

knew the essential objectives of the conspiracy, (3) the defendant knowingly and

voluntarily participated in the conspiracy, and (4) the alleged coconspirators were

interdependent.” United States v. Yehling, 456 F.3d 1236, 1240 (10th Cir. 2006).

Mr. Moser contends the evidence produced against him was legally insufficient

on the first three elements — that he did not agree with Mr. Frey to defraud

lenders, he did not know their business venture was aimed at doing so, and he did

not knowingly or voluntarily participate in any fraud.




                                        -6-
      But Mr. Moser’s involvement with the Hilger lease alone once again

suffices to satisfy each of these elements. From it a rational jury was free to

conclude that Mr. Moser agreed to commit bank fraud with Mr. Frey — that Mr.

Frey was the borrower on the loans for which Mr. Moser contributed the false

Hilger lease to help bolster Mr. Frey’s loan applications. A rational jury was also

free to conclude from the lease that Mr. Moser knew he and Mr. Frey intended to

misrepresent Mr. Frey’s credit-worthiness by purporting to show lease income

Mr. Frey didn’t have. And, finally, from the document a rational jury was able

infer that Mr. Moser knowingly and voluntarily participated in the scheme.

      Affirmed.


                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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