United States v. Kevin Lebeau ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-1656 & 18-3366
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN LEBEAU and BRIAN BODIE,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 CR 488 — Robert W. Gettleman, Judge.
____________________
ARGUED SEPTEMBER 10, 2019 — DECIDED FEBRUARY 4, 2020
____________________
Before WOOD, Chief Judge, and KANNE and BRENNAN,
Circuit Judges.
WOOD, Chief Judge. Intending to transform a failing health
club into a mixed-use condominium development, Kevin
LeBeau and Brian Bodie obtained a $1,925,000 loan from
Amcore Bank in 2004. By the next year, unfortunately, the
loan had fallen into default, and so the pair sought and ob-
tained a forbearance agreement (later amended) from
Amcore. These measures did not help either. Ultimately the
2 Nos. 18-1656 & 18-3366
two men were indicted in 2014 on multiple counts of bank
fraud and making false statements to the bank in connection
with the loan and forbearance agreements. The case went to
trial in 2017, and the jury convicted both LeBeau and Bodie on
all counts. The court sentenced each one to 36 months’ impris-
onment and restitution of more than a million dollars; both
have appealed.
LeBeau raises three arguments in this court: first, that the
district court erred by failing to give the jury an instruction on
materiality for the bank-fraud offenses; second, that the court
should not have admitted evidence related to certain victims’
losses in the scheme and their status as prior victims of fraud;
and finally, that he received ineffective assistance of counsel
at the sentencing stage, where his lawyer failed to challenge
the amount of restitution. Bodie contends that his conviction
must be thrown out because the superseding indictment was
time-barred. He also disputes the sufficiency of the evidence
to convict him. Finding no prejudicial error in any of these
respects, we affirm the district court’s final judgments.
I
A
At trial, the jury learned that Kevin LeBeau owned and op-
erated a health club located on approximately ten acres of
land he owned in Aurora, Illinois. Around 2004, the business
ran into difficulties, prompting LeBeau to team up with Brian
Bodie to redevelop the land as a condominium project. Bodie
was an attractive partner because he ran two mortgage com-
panies, PreStar Financial Corp. and Mortgage Desk. The two
submitted a loan application to Amcore Bank, a federally in-
sured financial institution, in May 2004, and the bank gave
Nos. 18-1656 & 18-3366 3
them a $1,925,000 mortgage loan in September 2004. LeBeau
and Bodie executed full personal guarantees on the loan and
listed Bodie’s two companies as guarantors.
As the borrower, LeBeau was required to submit truthful
and complete personal financial statements to the bank. But
from the start, he did not do so. LeBeau failed to disclose more
than $130,000 in outstanding personal loans in his initial per-
sonal financial statement, which he submitted in September
2004; he repeated the omission in a second statement submit-
ted in May 2005.
It did not take long for LeBeau and Bodie to fall behind on
the Amcore loan. By late 2005 they were in discussions with a
bank representative about how to proceed. Raising the stakes,
the bank issued a demand letter in March 2006. In response,
LeBeau and Bodie paid $151,000 toward the balance of the
loan—a step that convinced the bank to delay further action
at that time. In July 2006 Bodie sent a letter to Amcore request-
ing a forbearance agreement for the defaulted loan. In that let-
ter, Bodie represented that he and LeBeau had begun the for-
mal process to obtain rezoning and development permissions
from the city. This was false: in fact, they had only informally
discussed this possibility with city officials.
Amcore filed a foreclosure complaint in state court in Au-
gust 2006. For the next several months, discussions among the
defendants, along with their attorney, Robert Schlyer, about a
possible forbearance agreement took place. LeBeau and Bodie
offered to make payments toward the loan principal and in-
terest, and they represented that they had external investors
committed to the project.
4 Nos. 18-1656 & 18-3366
In January 2007 Amcore agreed to enter into a two-month
forbearance agreement on the condition that LeBeau and
Bodie make a $150,000 payment. LeBeau obtained the money
for the payment by securing a $300,000 investment in the de-
velopment project from Delores and Kenneth Palmquist. He
represented to the Palmquists that the condominium devel-
opment would be worth at least $6 million and that they
would receive 14% annual interest on the principal as well as
an interest in the underlying land. But he did not inform the
Palmquists that he and Bodie were in default on the project
loan and that Amcore had initiated foreclosure proceedings.
Nor did he disclose to Amcore that he obtained the money for
the forbearance fee by granting the Palmquists an interest in
the mortgaged property without the bank’s authorization.
Matters were no better for LeBeau and Bodie by March
2007: they were still unable to fulfill their obligations under
the loan, and so they sought an amended forbearance agree-
ment from the bank. In April, Schlyer sent materials to
Amcore indicating that the defendants had assembled a de-
velopment team, the zoning phase of the project would be
completed by June 2007, development was underway on the
parcel, and there were three subscribers ready to invest $1.5
million in the development company. None of these represen-
tations was true. They had the desired effect, however, when
Amcore agreed to enter an amended forbearance agreement
in May 2007.
In the end, LeBeau and Bodie made no further payments
on the Amcore loan and development never commenced on
the parcel. Amcore took ownership of the property in 2009 af-
Nos. 18-1656 & 18-3366 5
ter a sheriff’s sale, and it was ultimately sold by Amcore’s suc-
cessor, BMO Harris, for $375,000. None of the individual in-
vestors recouped their investment principal.
B
On August 28, 2014, a grand jury returned a nine-count
indictment charging LeBeau and Bodie with bank fraud in
violation of 18 U.S.C. § 1344(1) and (2), and making false
statements in violation of 18 U.S.C. § 1014. (Schlyer was
separately charged and tried by a jury in the Northern District
of Illinois for his role in the scheme. He was convicted on two
counts of wire fraud affecting a financial institution, 18 U.S.C.
§ 1343, and one count of bank fraud, 18 U.S.C. § 1344. 17-CR-
30 (N.D. Ill.)). On June 29, 2016, the grand jury returned an
eight-count superseding indictment. The superseding
indictment eliminated two of the false-statement counts and
associated allegations against Bodie, reorganized some of the
counts, added more recent conduct that indisputably fell
within the statute of limitations, and amended the section
1344 counts to allege violations of only section 1344(1). It
charged LeBeau with three counts of bank fraud, in violation
of section 1344(1), and four counts of making false statements
to the bank, in violation of section 1014; Bodie was charged
with three counts of bank fraud and three false-statement
counts.
In March 2017, after a week-and-a-half long trial, the case
was submitted to a jury. The district court instructed the jury
that in order to carry its burden on the section 1344(1) counts,
the government had to establish that (1) there was a scheme
to defraud a bank, (2) the defendants knowingly executed or
attempted to execute the scheme, (3) the defendants acted
with the intent to defraud, and (4) at the time of the charged
6 Nos. 18-1656 & 18-3366
offense the deposits of the bank were insured by the Federal
Deposit Insurance Corporation. The instruction did not state
that the government was required to prove the “scheme in-
volved a materially false or fraudulent pretense, representa-
tion, or promise …,” as recommended in the Seventh Circuit
Pattern Criminal Jury Instructions. See Pattern Criminal Jury
Instructions of the Seventh Circuit (2012 Ed.) (plus 2015–2017
and 2018 changes), http://www.ca7.uscourts.gov/pattern-
jury-instructions/7th_criminal_jury_instr.pdf (“Pattern In-
str.”), at 447. As noted earlier, the jury convicted both defend-
ants on all counts, and both received sentences of 36 months
in prison, two years of supervised release, and restitution in
the amount of $1,016,000.
II
A
We begin with LeBeau’s challenge to the jury instructions
for the bank-fraud counts. The statute prohibiting bank fraud,
18 U.S.C. § 1344, has two parts. Section 1344(1) states that
“Whoever knowingly executes, or attempts to execute, a
scheme or artifice—(1) to defraud a financial institution …
shall be fined not more than $1,000,000 or imprisoned not
more than 30 years, or both.” Subpart (2) prohibits a scheme
or artifice “to obtain any of the moneys, … or other property
owned by, or under the custody or control of, a financial
institution, by means of false or fraudulent pretenses,
representations, or promises.” § 1344(2). Counts One, Two,
and Three of the superseding indictment (the only ones that
referred to section 1344) all accused the defendants of offenses
under section 1344(1): “knowingly participat[ing] in a scheme
to defraud a financial institution,” Count One, ¶¶ 2, 11, or
“knowingly execut[ing] and attempting to execute the above-
Nos. 18-1656 & 18-3366 7
described scheme,” Count Two, ¶ 2, Count Three, ¶ 2. The
only false statements charged in the indictment appear in
Counts Four through Eight, all of which refer only to 18 U.S.C.
§ 1014.
When discussing the proposed jury instruction for the sec-
tion 1344 counts prior to trial, the government stated that be-
cause it had not brought charges under section 1344(2), mate-
riality was not an element and there was no need for an in-
struction on it. The district court said, “I assume the defend-
ants agree to that?” Bodie’s counsel responded, “I agree to it,”
and LeBeau’s counsel responded, “Yes, Judge.”
The district court instructed the jury on the elements of
section 1344 as follows:
1) There was a scheme to defraud a bank, as de-
scribed in Counts One, Two, and Three of the indict-
ment; and
2) The defendant knowingly executed or at-
tempted to execute the scheme; and
3) The defendant acted with the intent to de-
fraud; and
4) At the time of the charged offense the depos-
its of the bank were insured by the Federal Deposit In-
surance Corporation.
This instruction mirrors the Pattern Instructions, with the
key exception that it does not ask the jury to decide whether
“the scheme involved a materially false or fraudulent pre-
tense, representation, or promise.” See Pattern Instr. at 447.
LeBeau asserts that this omission impermissibly relieved the
8 Nos. 18-1656 & 18-3366
government of part of its evidentiary burden and prejudiced
him.
LeBeau’s point is a serious one, supported by Supreme
Court precedent and some of our decisions. In United States v.
Neder, 527 U.S. 1 (1999), the Supreme Court held that “mate-
riality of falsehood is an element of the federal … bank fraud
statute[].” Id. at 25. It did not limit that holding to section
1344(2). Rather, it determined that “fraud” itself requires the
element of materiality. Id. at 23. We have since said that Neder
requires “district courts [to] include materiality in the jury in-
structions for section 1344.” United States v. Reynolds, 189 F.3d
521, 525 n.2 (7th Cir. 1999). The Committee Comment to the
Pattern Instruction for section 1344 is even more explicit:
Although the Seventh Circuit has not yet addressed the
application of Neder to § 1344(1) specifically, the Ninth
Circuit, in United States v. Omer, 395 F.3d 1087 (9th Cir.
2005), held that materiality is an element of a § 1344(1)
violation under Neder. In light of the general admoni-
tions in Neder and Reynolds, this instruction has been
modified to reflect this requirement.
Pattern Instr. at 448.
On the other hand, we have not consistently followed this
guidance. Recently we stated that to prove bank fraud under
section 1344(1), the government needs to prove only the four
elements contained in the jury instruction in this case. United
States v. Ajayi, 808 F.3d 1113, 1119 (7th Cir. 2015). The addi-
tional materiality element, we said, was required only when
section 1344(2) was charged. Id.
The better course, consistent with Neder, is to require the
materiality instruction on all bank-fraud charges, whether
Nos. 18-1656 & 18-3366 9
brought under section 1344(1) or (2). The government has in-
formed us that this is its current practice, and we encourage
that practice to continue until such time as we receive greater
clarity from the Supreme Court about what is required.
The question whether the court’s omission of the materi-
ality element in LeBeau’s case requires reversal does not,
however, turn on whether the court erred in this respect. It
turns instead on the fact that LeBeau’s counsel affirmatively
consented before trial to the instruction without the material-
ity element, and counsel never withdrew that position.
If a defendant negligently bypasses an opportunity to
challenge a jury instruction—i.e. he forfeits it—he may never-
theless later attack that instruction for plain error. FED. R.
CRIM. P. 30(d) and 52(b). “However, a defendant who
waives—rather than forfeits—his objection cannot avail him-
self of even the demanding plain error standard of review.”
United States v. Natale, 719 F.3d 719, 729 (7th Cir. 2013). “Alt-
hough passive silence with regard to a jury instruction per-
mits plain error review … a defendant’s affirmative approval
of a proposed instruction results in waiver.” Id. We have
“strictly applied this rule to affirmative expressions of ap-
proval without examining whether the statements were a
‘knowing and intentional decision’ or resulted from ‘negli-
gently bypassing a valid argument.’” Id. “As a result, affirma-
tive statements as simple as ‘no objection’ or ‘no problem’
when asked about the acceptability of a proposed instruction
have resulted in waiver.” Id. at 730.
LeBeau argues that his counsel did not affirmatively ap-
prove the court’s instructions and that the interests of justice
require us to overlook any waiver that occurred. The first
point finds no support in the record. The judge could not have
10 Nos. 18-1656 & 18-3366
been more direct. After the government explained why it was
not proposing a materiality instruction, the judge said “I as-
sume the defendants agree to” an elements instruction that
omitted materiality, and LeBeau’s counsel said “Yes, Judge.”
That can only be read as direct acquiescence in the proposed
instruction. Moreover, because this discussion took place in
pretrial proceedings, counsel had the opportunity to confirm
what the government said and to raise a later objection to the
instruction at any time before the case went to the jury. But he
did not. He therefore waived the argument.
LeBeau’s second argument—that we can overlook a genu-
ine waiver—fails to grapple with the nature of a true waiver.
In United States v. Olano, 507 U.S. 725 (1993), the Supreme
Court said that when a defendant has waived a right (that is,
has intentionally relinquished or abandoned a known right,
see Johnson v. Zerbst, 304 U.S. 458, 464 (1938)), that right has
been extinguished. 507 U.S. at 733. See United States v. Waldrip,
859 F.3d 446, 449 (7th Cir. 2017). This is not to say that the
characterization of the defendant’s action is not critical. At
times, there may be some ambiguity in the defendant’s state-
ment, and so the court must decide whether it is looking at
waiver or the type of negligent oversight that triggers plain-
error review. See Natale, 719 F.3d at 729–30. In this case, how-
ever, we see no such ambiguity. We note as well that we spec-
ulated in Natale that waiver might not be “an absolute bar on
our consideration of issues not preserved below” and that
“[w]hen the ‘interests of justice’ so require, we may reach the
merits of a waived issue.” Id. at 731 (citing Fleishman v. Cont’l
Cas. Co., 698 F.3d 598, 608 (7th Cir. 2012)). But this was dicta.
Such an exception to the ban on review of waived issues
would be difficult to square with the Supreme Court’s
Nos. 18-1656 & 18-3366 11
teachings, but we need not pursue this possibility any further
in LeBeau’s case. First, the waiver is clear. Second, even if we
thought it was ambiguous enough to support plain-error
review, the omission of the materiality element from LeBeau’s
jury instruction did not affect his substantial rights, Olano, 507
U.S. at 732; in fact, it is hard to imagine a jury that would not
have found LeBeau’s stories to Amcore to be material,
meaning “capable of influencing the decision of the person to
whom it was addressed.” See Pattern Instr., 18 U.S.C. §§ 1341
& 1343 Definition of Material, at 431 (cross-referenced in
Comment to § 1344(1) at 448). LeBeau candidly acknowledges
that the jury instructions given in Neder and Reynolds were
found to be sufficient or at worst harmless error despite
omitting a required element. The same is true here. The
district court could reasonably have determined that the term
‘fraud’ “embodies the concept of materiality,” and that the
instructions as given “adequately place[d] the question of
materiality before the jury.” United States v. Pribble, 127 F.3d
583, 589 (7th Cir. 1997); see also United States v. Fernandez, 282
F.3d 500, 509 (7th Cir. 2002) (finding in the health-services
fraud context that omission of an explicit reference to
materiality in the jury instruction was not plain error because
the instructions viewed in their entirety adequately embraced
the concept of materiality).
LeBeau waived any argument he might have presented
about the need to include a separate materiality instruction on
the charges under section 1344(1) when he affirmatively con-
sented to proposed language. Moreover, even if he merely
forfeited this point, any possible error did not affect his sub-
stantial rights.
12 Nos. 18-1656 & 18-3366
B
We next consider LeBeau’s assertion that the district court
erred by allowing the government to introduce evidence of
Amcore’s and various investors’ losses as a result of the fraud-
ulent scheme. LeBeau did not object to this evidence at trial,
and so our review is only for plain error. See United States v.
Thomas, 933 F.3d 685, 690 (7th Cir. 2019); FED. R. CRIM. P. 52(b).
“On plain-error review, we may reverse if: (1) an error oc-
curred, (2) the error was plain, (3) it affected the defendant’s
substantial rights, and (4) it seriously affected the fairness, in-
tegrity, or public reputation of the proceedings.” Thomas, 933
F.3d at 690. “Plain error will be found only when the exclusion
of the erroneously admitted evidence probably would have
resulted in an acquittal.” United States v. Rangel, 350 F.3d 648,
650 (7th Cir. 2003).
At trial, the government introduced evidence showing
that Amcore’s successor eventually foreclosed on the prop-
erty and recouped only $375,000—far less than the remaining
balance on the loan—in a sheriff’s sale. The jury also heard
evidence that individual investors lost the principal they had
ploughed into the supposed condominium project. Others
who had made personal loans to LeBeau were never repaid.
One investor, Janice Pace, testified about having previously
been a victim of an unrelated investment fraud and about
how the defendants pitched investment in their development
as a way for the Paces to recover from their previous losses.
LeBeau argues that “pecuniary loss is not an element of a
fraud charge that the government is required to prove in or-
der to sustain a conviction.” This evidence, he says, amounts
to “victim impact testimony” that should have been excluded
Nos. 18-1656 & 18-3366 13
under Federal Rule of Evidence 403, as it has little or no pro-
bative value and is highly prejudicial. The government re-
sponds that the evidence was relevant because it showed the
scope and methods of the fraudulent scheme and helped to
“establish defendants’ mens rea, including knowledge that
their efforts to avoid payment and delay foreclosure could
cause substantial risk of loss.” The government also argues
that the evidence of LeBeau’s outstanding debt was admissi-
ble for the purpose of supporting the charge that the personal
financial statements he filed with Amcore in order to obtain
the development loan were false.
Because LeBeau did not object at trial to introduction of
any of this evidence, the district court did not have a chance
to exercise its discretion. As a result, LeBeau “must essentially
show that the evidence was so obviously and egregiously
prejudicial that the trial court should have excluded it even
without any request from the defense, and that no reasonable
person could argue for its admissibility.” United States v.
LeShore, 543 F.3d 935, 939 (7th Cir. 2008).
LeBeau has not met this demanding standard. Even if ev-
idence of pecuniary losses was unnecessary given the amount
of other evidence produced at trial supporting the jury’s ver-
dict, we cannot say that LeBeau probably would have been
acquitted but for this contested evidence.
C
Finally, LeBeau argues that the court erred in calculating
restitution. Once again, this is a new argument on appeal.
This time he asserts that his sentencing counsel’s failure to
make a proper objection amounted to ineffective assistance of
14 Nos. 18-1656 & 18-3366
counsel in violation of his Sixth Amendment rights. We gen-
erally discourage raising this argument on direct appeal, since
the record so often sheds no light on counsel’s thinking.
LeBeau has insisted, however, that he wishes to press it, and
so (with the reminder that he will not be able to raise an inef-
fectiveness claim again in a motion under 28 U.S.C. § 2255) we
will examine it.
In his sentencing memorandum, LeBeau agreed to a total
loss figure of $1,016,000—$789,000 to Amcore and $227,000 to
the Palmquists. This is the precise amount that the district
court ordered as restitution. The question for us is whether
counsel’s failure to, or decision not to, object to that amount
fell below the minimum acceptable performance level and
was so prejudicial to LeBeau that his Sixth Amendment rights
were violated. See Strickland v. Washington, 466 U.S. 668, 687
(1984). For counsel’s performance to be deficient, he must
have “made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id.
LeBeau argues that his counsel should have objected to the
inclusion of Amcore’s losses because Amcore was not
properly categorized as a victim entitled to restitution under
the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A.
This is so, LeBeau asserts, because Amcore was reckless in
loaning money to the defendants and entering into a forbear-
ance agreement with them. He reasons that the bank’s loss
should therefore be deemed the result of its own recklessness
rather than the defendants’ misconduct. For support he turns
to our decision in United States v. Litos, 847 F.3d 906 (7th Cir.
2017). In Litos, we reversed an order of restitution to Bank of
America because the bank did not “have clean hands” and
Nos. 18-1656 & 18-3366 15
acted recklessly by “clos[ing] its eyes” to phony loan applica-
tions and questionable claims about the solvency of the mort-
gagors involved. Id. at 907–10.
LeBeau contends that Amcore was equally reckless here
because it knew that LeBeau and Bodie were in dire financial
straits and ignored the advice of its own lawyers when it en-
tered into the forbearance agreements. He also notes that the
district court in Schlyer’s trial was troubled by Amcore’s lack
of diligence and accordingly declined to order restitution to
the bank. LeBeau presumes that if his sentencing counsel had
raised the same argument Schlyer’s counsel made, the district
court in his case would have reached the same conclusion.
But one district court’s conclusion is not binding on an-
other. LeBeau provides no support for his assumption that
additional argument would have prompted the district court
here to follow the example of its colleague in Schlyer. We add
that Litos is readily distinguishable. There we found that the
loan applications were “a joke on their face” and showed clear
signs of being phony. That was not the case here. There were
certainly indications that the defendants were struggling—
that was why they needed a forbearance agreement. But part
of the defendants’ fraudulent scheme involved raising signif-
icant funds to pay the bank in exchange for the forbearance
agreements. Those payments misled Amcore into believing
that the risk was manageable. Each time the defendants paid
what the bank demanded, even though they did so by com-
mitting fraud on others. Whether the bank was reckless is de-
batable and it is not certain what the district court would have
decided had the defendants timely raised the argument.
Nothing on this record raises a reasonable probability that
LeBeau’s counsel would have succeeded with an attack on the
16 Nos. 18-1656 & 18-3366
restitution order. We see neither deficient performance nor
prejudice, and so we find no violation of his Sixth Amend-
ment right to counsel.
III
We now move on to the two claims Bodie raises on appeal:
(1) the timeliness and validity of the superseding indictment,
and (2) the sufficiency of the evidence to convict him on all
counts.
A
Bodie did not raise a statute of limitations defense in the
district court. While this omission does not result in waiver,
see FED. R. CRIM. P. 12(b), it does result in forfeiture, see United
States v. Ross, 77 F.3d 1525, 1536 (7th Cir. 1996). Accordingly,
we review whether the superseding indictment is time-barred
only for plain error. FED. R. CRIM. P. 52(b).
The superseding indictment, which is the one on which
Bodie focuses, was filed on June 29, 2016. The limitations pe-
riod for the crimes charged is ten years. 18 U.S.C. § 3293(1).
The superseding indictment charged Bodie with violations of
section 1344 stemming from conduct in January and May
2007, and with violations of section 1014 stemming from con-
duct in July 2006 and April 2007. All conduct charged oc-
curred within the ten-year period extending backward from
June 29, 2016. On its face, therefore, the superseding indict-
ment against Bodie was not untimely.
Bodie argues nonetheless that the superseding indictment
materially broadened the original charges, preventing it from
‘relating back’ to the original indictment (which had been
returned on August 28, 2014) and leaving it time-barred. But
the relation-back doctrine merely allows a superseding
Nos. 18-1656 & 18-3366 17
indictment charging conduct now outside the statute of
limitations to supplant a “still-pending original indictment …
so long as it neither materially broadens nor substantially
amends the charges initially brought against the defendant.”
Ross, 77 F.3d at 1537. The doctrine does not bar the
government from charging new conduct that is
independently within the limitations period set by the new
indictment. Because all charges against Bodie in the
superseding indictment were timely, it does not matter if they
were materially different from those in the original
indictment.
The only conduct charged in the superseding indictment
that fell outside of the ten-year period was LeBeau’s submis-
sion of false personal financial statements. This conduct was
also charged in the original indictment, however, and so there
is no relation-back problem. In any event, LeBeau did not
challenge the superseding indictment. Accordingly, Bodie’s
challenge to the timeliness of the superseding indictment is
without merit.
B
Last, Bodie contests the sufficiency of the evidence to con-
vict him. Bodie’s charges stem from the defendants’ efforts to
obtain the original and amended forbearance agreements
from Amcore Bank in January and May 2007.
“In reviewing the sufficiency of the evidence, we review
the evidence in the light most favorable to the government,
and we will overturn a jury verdict only if no rational trier of
fact could have found the essential elements of the crime be-
yond a reasonable doubt.” United States v. Garten, 777 F.3d
18 Nos. 18-1656 & 18-3366
392, 400 (7th Cir. 2015). This is a “heavy burden” for the de-
fendant. United States v. Brandt, 546 F.3d 912, 915 (7th Cir.
2008). We will not re-weigh the evidence or “second-guess the
jury’s credibility determinations.” United States v. Coscia, 866
F.3d 782, 795 (7th Cir. 2017).
Recall that Counts 1–3 are for bank fraud under 18 U.S.C.
§ 1344(1), which criminalizes “knowingly execut[ing], or at-
tempt[ing] to execute, a scheme or artifice—(1) to defraud a
financial institution… .” Count 1 charges a scheme to defraud
with the original forbearance agreement as the execution. The
false statements discussed in Count 6, along with other evi-
dence, support this charge. Count 2 charges a scheme to de-
fraud with the deposit of the Palmquists’ money as the execu-
tion. The record shows that the defendants fraudulently ob-
tained a $300,000 investment from Delores and Kenneth
Palmquist in exchange for a purported interest in the prop-
erty, and they used $150,000 of it as consideration for the orig-
inal forbearance agreement with the bank. Personnel from the
bank testified that this payment was a critical factor in the
bank’s willingness to enter into a forbearance agreement and
that they did not know where the money came from. Count 3
charges a scheme to defraud with the amended forbearance
agreement as the execution. The false statements discussed in
Counts 6 and 7 support this charge.
Counts 6–8 are for false statements in violation of section
1014, which criminalizes “knowingly mak[ing] any false
statement or report … for the purpose of influencing in any
way the action of … any institution the accounts of which are
insured by the Federal Deposit Insurance Corporation… .”
On Count 6, the government introduced into evidence a
letter Bodie sent to Amcore Bank on July 21, 2006, requesting
Nos. 18-1656 & 18-3366 19
a forbearance agreement on the defaulted loan he and LeBeau
previously obtained from the bank. In the letter, Bodie indi-
cated that he and LeBeau, working with a local developer,
had begun the formal re-zoning process with the city:
We are in the first phase of a three-stage process and
have had conversation [sic] with the aldermen and the
city planner for the City of Aurora. … We expect to
have zoning approval by year end, at which time we
will refinance the loan with another financial institu-
tion. I hope these terms meet with your approval, as
we are confident our zoning request will meet with ap-
proval by the City of Aurora.
At trial the city’s director of economic development and its
director of zoning each testified that this letter misrepresented
what was happening. They stated that the formal process for
requesting re-zoning had not begun as of the time Bodie and
LeBeau obtained the forbearance agreement.
On Count 7, the government introduced evidence that on
April 4, 2007, LeBeau and Bodie’s lawyer, Schlyer, sent the
bank materials falsely purporting to show that development
was underway on the health club site and that LeBeau and
Bodie had secured subscription agreements from three inves-
tors totaling $1.5 million. Bodie hired someone to produce
these documents. The evidence at the trial, however, indi-
cated that LeBeau and Bodie knew that the materials were
misleading, yet they either told Schlyer to send them to the
bank, or at least they knew he was doing so.
Evidence before the jury also supported the charges in
Count 8. It learned that on April 23, 2007, Schlyer sent the
20 Nos. 18-1656 & 18-3366
bank a letter and other materials representing that the defend-
ants had formalized an investment mechanism for the devel-
opment, that the subscription agreements were genuine, that
they had assembled a development team, and that they ex-
pected zoning to be complete by June 2007. These materials
supported the defendants’ request for an amended forbear-
ance agreement, which the bank granted on May 8, 2007.
Bodie signed this agreement.
Bodie disputes his knowledge of both of Schlyer’s April
2007 communications with the bank and asserts that he was
not involved in the negotiation of the original and amended
forbearance agreements after July 2006. But the jury was not
obliged to believe his testimony, and in fact did not.
It was rational for the jury to conclude that the evidence
established beyond a reasonable doubt that Bodie knowingly
and intentionally made, and caused others to make, false rep-
resentations to Amcore about the status of the development
in order to obtain the forbearance agreements. We therefore
reject his contention that the evidence was insufficient to sup-
port the jury’s verdict.
IV
We AFFIRM the district court’s final judgments in both of
these appeals.