United States v. Aaron Moeser , 758 F.3d 793 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3718
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AARON MOESER,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 11-CR-127 — Rudolph T. Randa, Judge.
____________________
ARGUED APRIL 14, 2014 — DECIDED JULY 10, 2014
____________________
Before WOOD, Chief Judge, and POSNER and FLAUM, Circuit
Judges.
FLAUM, Circuit Judge. Aaron Moeser was a loan officer at
a bank who, by making material misrepresentations to his
employer, enabled an unscrupulous real-estate developer
and his associates to obtain a loan the developer couldn’t re-
pay. As a result, Moeser joined his co-defendants in pleading
guilty to conspiracy to commit bank fraud. Moeser now
challenges the district court’s decision ordering him jointly
2 No. 13-3718
and severally liable for the full amount of restitution owed
to the conspiracy’s victims. In the alternative, Moeser argues
that the court abused its discretion by not apportioning the
restitution obligation and giving him a smaller share based
on his lesser role and his financial circumstances. We find no
merit in either argument, and affirm the court’s order.
I. Background
Moeser was a commercial loan officer at State Financial
Bank in Milwaukee, Wisconsin. In September 2004, Moeser
prepared a credit approval presentation on behalf of co-
conspirator Michael Woyan for Woyan to obtain a $790,000
construction loan from State Financial. Woyan was the head
of the People’s Action Redevelopment Coalition (PARC), a
real-estate developer that planned to build five townhouses
at South 5th Place and West Arthur Avenue in Milwaukee
(“the 5th and Arthur project”). (There were three other con-
spirators besides Moeser and Woyan: the project’s manager,
Joseph Bowles; the architect, Roderick Taylor; and a real es-
tate agent, Leopoldo Balderas. The details of their involve-
ment in the scheme are not important to Moeser’s appeal.)
Moeser represented to his superiors at the bank that the pro-
ject’s real estate would serve as the construction loan’s col-
lateral. He also represented that PARC would be providing
the land up front and would thus have a significant equity
interest in the project. Senior bank officials preliminarily ap-
proved the loan.
Before closing, however, Moeser learned that Woyan did
not, in fact, own the land that PARC needed for the project,
and moreover, that Woyan did not have the financial means
to purchase it. Rather than informing his superiors at State
Financial that the representations in PARC’s application
No. 13-3718 3
were incorrect, Moeser saw an opportunity. He agreed to
lend Woyan the $30,500 that PARC needed to purchase the
land, on the understanding that Woyan would pay Moeser
back—plus $15,000 in interest—using funds from the con-
struction loan’s initial disbursement. Moeser did not disclose
to his superiors that the funds for PARC’s purchase of the
land came from his own pocket, nor the fact that his person-
al loan was to be repaid with the construction loan. And
bank officials told federal investigators that they would not
have approved PARC’s loan if they had known of this ar-
rangement. But they didn’t know, so the loan went through
and Moeser got his $45,500 from the initial disbursement of
$111,299.
After this first disbursement, PARC needed to make pe-
riodic “draw requests” to the bank detailing the 5th and Ar-
thur project’s progress and costs and asking to draw upon
the remaining loan funds. PARC made fifteen such draw re-
quests; Moeser reviewed each request and forwarded it to
his superiors for final approval. Sometime before the fif-
teenth and final draw in September 2005, Moeser learned
from Woyan that—directly contrary to the representations in
PARC’s latest request for more funds—the 5th and Arthur
project was far from complete. He also learned that PARC
was using loan funds for purposes not listed in the draw re-
quests, including the salaries of PARC employees who were
developing an entirely different real-estate project on Mil-
waukee’s north side called “Lighting the Way.” As a result,
the 5th and Arthur project was facing a major shortfall.
When Woyan asked Moeser what he should do, Moeser told
him to continue paying PARC personnel to develop Lighting
the Way—rather than spending more on construction for 5th
and Arthur—in the hope that PARC could obtain another
4 No. 13-3718
bank loan for the new project. Afterward, Moeser forwarded
PARC’s fifteenth draw request to his superiors without in-
forming them (or anyone else) of its misrepresentations and
Woyan’s intention to divert the funds.
The 5th and Arthur project was never completed, and
PARC defaulted on its loan. Three contractors and a lumber
supplier (collectively, “the contractors”) were never fully
paid for the work they completed or the materials they sup-
plied. State Financial’s successor-in-interest, Associated
Bank, eventually foreclosed on the property.
In June 2011, Moeser and the four other defendants were
indicted on federal charges; Moeser was charged with one
count of bank fraud. A superseding indictment added an-
other count of bank fraud against Moeser in addition to
charges for corrupt acceptance of money, fraud of a financial
institution by an employee, and making false statements
during an investigation. In April 2012, Moeser, along with
his co-defendants, waived prosecution by indictment and
pleaded guilty to an information charging one count of con-
spiracy to commit bank fraud in violation of 18 U.S.C.
§§ 1344 and 371.
The district court gave Moeser a below-guidelines sen-
tence of two years’ probation, which Moeser does not ap-
peal. But the government also asked that Moeser and his co-
defendants be jointly and severally liable for $625,544 in res-
titution: $480,000 to Associated Bank for the amount of
PARC’s loan that was never repaid (minus what the bank
recouped in the foreclosure sale), and the rest to make whole
the contractors. The government argued that the bank and
the contractors were victims of the defendants’ bank fraud
No. 13-3718 5
conspiracy and thus entitled to restitution under the Manda-
tory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A.
Moeser contested the government’s claim that he should
be held accountable for the full $625,544 in restitution. He
argued that most of the victims’ losses were caused not by
his actions, but rather by the wrongful conduct of Woyan
and his associates. Moeser said that his wrongful conduct in
the course of the conspiracy was limited to his approving
PARC’s final draw request in September 2005. His undis-
closed personal loan to Woyan, Moeser argued, did not con-
tribute to the bank’s loss because the personal loan was un-
secured and therefore did not affect the value of the bank’s
collateral (the land). He also argued that there were suffi-
cient funds budgeted in the 5th and Arthur project’s “soft
costs”— discretionary funds that were not slated for specific
construction costs—to cover the repayment of Moeser’s loan
plus the $15,000 in interest. Thus, Moeser maintained, he
and Woyan never made any material misrepresentations to
the bank at the time of the construction loan’s origination.
And he wasn’t the one who failed to pay the contractors. Ac-
cordingly, Moeser argued that he should have to pay only
$23,048 in restitution—the amount of the construction loan
that was wrongfully diverted to non-project expenses as a
result of Moeser’s deception in the fifteenth draw. In the al-
ternative, Moeser asked the court to exercise its discretion
under 18 U.S.C. § 3664(h) to assign him a smaller share of the
joint-and-several obligation to reflect his lower level of cul-
pability and his financial circumstances.
The district court postponed its decision about restitution
to give the government an opportunity to provide additional
evidence of Moeser’s involvement in the scheme. After re-
6 No. 13-3718
ceiving more briefing from both sides, the district court re-
jected Moeser’s arguments in a written opinion. The court
ordered him jointly and severally liable for the full $625,544,
to be paid in monthly installments of $200.
II. Discussion
We review the district court’s authority to issue a restitu-
tion order de novo and its calculation of the restitution
amount for an abuse of discretion. United States v. Berkowitz,
732 F.3d 850, 852 (7th Cir. 2013). “A restitution order will be
disturbed only if the district court relied upon inappropriate
factors when it exercised its discretion or failed to use any
discretion at all.” United States v. Sensmeier, 361 F.3d 982, 988
(7th Cir. 2004).
The MVRA requires district courts to award restitution to
identifiable victims of fraud, including bank fraud. 18 U.S.C.
§§ 3663A(a)(1), 3663A(c)(1)(A)(ii). The MVRA defines a “vic-
tim” as:
a person directly and proximately harmed as a result
of the commission of an offense for which restitution
may be ordered including, in the case of an offense
that involves as an element a scheme, conspiracy, or
pattern of criminal activity, any person directly
harmed by the defendant’s conduct in the course of
the scheme, conspiracy, or pattern.
Id. § 3663A(a)(2). Notably, Moeser never argued (to the dis-
trict court or to our court) that the bank and the contractors
do not qualify as victims of PARC’s scheme. Instead, he ar-
gues that most of the bank’s losses, and all of the contractors’
losses, were caused by his co-defendants’ actions—not his.
His wrongful conduct was limited to his involvement in the
No. 13-3718 7
fifteenth and final draw on the loan funds. That was the only
point at which his actions caused the bank to lose any mon-
ey, Moeser says, and so that is all the bank is entitled to in
restitution from him.
The problem with Moeser’s argument is that under our
precedent, co-conspirators are held jointly and severally lia-
ble for all foreseeable losses within the scope of their con-
spiracy regardless of whether a specific loss is attributable to
a particular conspirator. See Berkowitz, 732 F.3d at 853; United
States v. Dokich, 614 F.3d 314, 318 (7th Cir. 2010); United States
v. Martin, 195 F.3d 961, 968–69 (7th Cir. 1999). In other
words, in this context, the government did not need to prove
“a direct causal relationship between the defendant’s per-
sonal conduct and a victim’s loss,” because “the MVRA im-
poses joint liability on all defendants for loss caused by oth-
ers participating in the scheme.” Dokich, 614 F.3d at 318 (em-
phasis added).
Moeser acknowledges this rule. Yet he seeks to escape its
force. He argues—somewhat incredibly—that the govern-
ment actually prosecuted multiple conspiracies in connec-
tion with the PARC loan, and that he, Moeser, was charged
with joining only one: a smaller, more limited conspiracy to
make false representations to the bank at the point of the fif-
teenth draw.
That theory could be plausible in the abstract. But it’s
clearly not what happened in this case. The criminal infor-
mation—to which Moeser pleaded guilty—charges his know-
ing involvement in a conspiracy to commit bank fraud be-
ginning in September 2004 (when Moeser made the personal
loan to Woyan) and lasting through October 2005 (after he
approved the final draw). Lest there be any doubt about the
8 No. 13-3718
charged conspiracy’s scope, the information describes the
scheme’s object as “to obtain money to fund the construction
of five townhouses at a location in Milwaukee,” and alleges
that to accomplish this, the conspirators—including
Moeser—“sought and obtained a loan from State Financial
Bank, through materially false promises and representa-
tions.” It lists among these “materially false representations”
Moeser and Woyan’s “failure to disclose that funds for
PARC’s purchase of the land for the project were obtained
from an unsecured $30,500.00 loan from Aaron Moeser and
that the loan would be repaid, with interest of $15,000.00,
from some of the construction loan funds initially disbursed
to PARC.” And the information also charges that in further-
ance of the conspiracy, Moeser “promoted the loan to senior
bank officials, knowing that the project developer, PARC,
lacked the funds to purchase the real estate that was pledged
as collateral.” Thus, Moeser cannot possibly claim that he
was only convicted of participating in a limited conspiracy
to mislead the bank at the point of the fifteenth draw.
Similarly, Moeser’s various theories about why his per-
sonal loan to Woyan did not actually defraud the bank—the
fact that his personal loan was unsecured, the possibility that
the $45,500 PARC used to repay him came from the con-
struction loan’s “soft costs” and not its construction budget,
etc.—are too little, too late. If Moeser believed that his prose-
cution lacked a factual or legal basis, he should have pleaded
not guilty and raised these arguments at trial. But he did the
opposite: he admitted in his plea agreement that his misrep-
resentations to his superiors were “materially false” and fur-
thered the conspiracy’s goal of obtaining the loan. He cannot
revisit these admissions under the guise of contesting the
restitution amount.
No. 13-3718 9
In any event, the government put forth sufficient evi-
dence for the district court to find, by a preponderance of the
evidence, that Moeser’s conduct in the course of the conspir-
acy contributed to both the bank’s and the contractors’ loss-
es. See 18 U.S.C. § 3664(e). Moeser’s superiors at the bank
gave statements to investigators affirming that had they
known that PARC did not actually have an equity interest in
the project, and that the funds for the land’s purchase would
be coming from one of the bank’s employees (and ultimately
from the bank itself), they would not have approved PARC’s
loan. Moeser’s deception was thus essential to the scheme
getting off the ground. Moreover, the government’s post-
sentencing evidence indicated that Moeser knew that PARC
was misspending the funds as early as the eighth draw, in
May 2005. And this evidence further showed that Moeser
not only turned a blind eye to PARC’s improper spending,
but actually instructed Woyan—when Woyan asked for ad-
vice before the final draw—to continue diverting funds to
Lighting the Way rather than finish 5th and Arthur. Indeed,
Moeser specifically advised Woyan to delay paying out-
standing supplier bills.
We therefore find no merit in Moeser’s argument that he
cannot be held jointly liable under the MVRA for the losses
his conspiracy caused its victims. We now turn to his alter-
native argument: that the district court nonetheless should
have exercised its statutory discretion to give Moeser a
smaller share of the obligation.
18 U.S.C. § 3664(h) provides that “[i]f the court finds that
more than 1 defendant has contributed to the loss of a vic-
tim,” the court may either “make each defendant liable for
payment of the full amount of restitution,” or “apportion li-
10 No. 13-3718
ability among the defendants to reflect the level of contribu-
tion to the victim’s loss and economic circumstances of each
defendant.” This determination is left to the district court’s
discretion. Sensmeier, 361 F.3d at 990. Moeser argues that the
court abused that discretion in his case in three respects.
First, Moeser maintains that the court should have con-
sidered his “disproportionately small causal contribution to
the loss” and held him responsible only for the $23,048
stemming from the fifteenth draw. However, the record
shows that the court did consider Moeser’s contributions to
the scheme and found them significant. Rejecting “Moeser’s
attempt to distance himself from the actions of his co-
conspirators,” the court reiterated its analysis regarding
Moeser’s membership in the conspiracy and his actions in
furtherance of it. Having found that Moeser “fully contribut-
ed to the loss of the bank and to the losses of the unpaid
subcontractors,” the court decided against letting him off the
hook under § 3664(h). Based on our earlier analysis, we find
no abuse of discretion in that decision.
Second, Moeser argues that the district court should have
given him a lesser share of the $625,544 obligation based on
his “economic circumstances.” But Moeser never made a
compelling argument to the court on this front. In his brief
before sentencing, Moeser alluded vaguely to his “financial
challenges” and referred the court to a memorandum pre-
pared by his defense sentencing consultant. He told the
court that the consultant’s analysis had established that
“there is no reasonable probability that [he] would ever be
able to pay restitution of hundreds of thousands of dollars.”
The consultant’s memorandum, in turn, concluded that
“[w]ith a negative net worth of more than $600,000, includ-
No. 13-3718 11
ing outstanding loan obligations of almost $3 million and
assets of $2.2 million, Aaron has no ability to make restitu-
tion.” However, the probation office also detailed Moeser’s
assets—which included 20 investment properties—and his
liabilities in the presentence investigation report. And the
probation officer recommended that Moeser be sentenced to
the full $625,544 at the $200/month rate. Given these conflict-
ing economic assessments—and the fact that Moeser himself
did not make a more substantial argument about his “finan-
cial challenges” in his brief to the court—the district court
did not abuse its discretion by siding with the probation of-
fice’s assessment over the defense consultant’s.
Finally, Moeser argues that the court had a statutory obli-
gation to consider his economic circumstances, and that the
court’s omission of the subject in its written order was “a
manifest failure to consider a key statutory factor” and “a per
se abuse of discretion.” For this proposition, Moeser points
to 18 U.S.C. § 3664(f)(2), which states:
Upon determination of the amount of restitution
owed to each victim, the court shall … specify in the
restitution order the manner in which, and the sched-
ule according to which, the restitution is to be paid, in
consideration of—
(A) the financial resources and other assets of the
defendant, including whether any of these assets are
jointly controlled;
(B) projected earnings and other income of the de-
fendant; and
(C) any financial obligations of the defendant; in-
cluding obligations to dependents.
12 No. 13-3718
A close evaluation of the text reveals that Moeser misreads
the statute. All that § 3664(f)(2) mandates is that the court
consider a defendant’s economic circumstances in specifying
the manner in which and the schedule according to which restitu-
tion is to be paid. This subsection does not obligate the court
to consider the defendant’s economic circumstances in ap-
portioning liability between co-defendants.
Thus, the district court was only required to take account
of Moeser’s financial circumstances in setting his payment-
by-installment schedule. See United States v. Day, 418 F.3d
746, 758–59 (7th Cir. 2005). Moeser never argued that the
$200/month schedule was inordinate in light of his financial
means. In fact, at oral argument before this court, his attor-
ney did not even know what the payment schedule was. As
such, the district court committed no abuse of discretion
with respect to § 3664(f)(2), either.
AFFIRMED.