US v. Moser
- Summarized by Aletheia Allen , New Mexico Court of Appeals
- 13 years 3 weeks ago
- Citation:
- United States v. Moser, 5:09-CR-40086-CM-1
- Tag(s):
-
- Ruling:
- The Court affirmed a jury conviction and sentencing for bankruptcy fraud. The first portion of the opinion is dedicated to Multiplicitous counts--those based on the same criminal behavior. The Court held that, when evaluating allegations of multiplicitous counts, each separate act of concealment (e.g., to the Trustee in a 341 Meeting, as here) is a separate violation. The Court relied on reasoning from other circuits and the U.S. Supreme Court that any other approach "would permit a defendant who has committed a first concealment to steal more," which would effectively treat multiplication of criminal acts as a bonus for the criminal actor free from additional penalty. The second portion of the opinion holds that a guilty jury verdict stands, as long as the evidence is sufficient with respect to any one of the acts charged. In this case, the jury had sufficient evidence to find the defendant guilty as to the coins and stamps; therefore, it was unnecessary for the Court to address concealment of the option (to purchase).
- Procedural context:
- A landlord of the Defendant filed eviction proceedings in March 2005, and, thereafter, the defendant and his wife filed a voluntary Chapter 7 petition in April 2005. Defendant received discharge in May 2006. In April 2007, the Defendant filed a Chapter 13 petition. Based on his actions in both bankruptcies, he was charged in the U.S. District Court with several counts of bankruptcy fraud, convicted by a jury on nine counts, and sentenced to 121 months' imprisonment. He appealed to the 10th Circuit Court of Appeals.
- Facts:
- Defendant, as manager and member of HAF, entered into a lease and option agreement with a landlord who, in March 2005, initiated eviction proceedings due to unpaid rent of $64,000. In April 2005, Defendant and his wife filed for Chapter 7. The Chapter 7 Trustee conducted two 341 Meetings, the second because he was still unclear on the Debtor's assets and liabilities after the first. Defendant failed to disclose a sub-lease agreement and an option to purchase real property (valued at $1.5 million) to the chapter 7 trustee, and he did disclose on his SOFA a transfer of property (coins and stamps) worth $125,000, even though the property was later returned to him because it was, in reality, only pledged collateral, not a transfer. In May 2006, Defendant received discharge despite continued confusion as to Defendant's assets. In April 2007, Defendant filed Chapter 13. In the Chapter 13 proceeding, Defendant did not disclose his interest in the coins or stamps, but later amended his SOFA to include a transfer of the coins and stamps valued at $10,000. Defendant was thereafter charged with several counts of Bankruptcy Fraud. Defendant moved to impose a single punishment for Counts 2-8 and to vacate Counts 3-8 on the basis that the counts were multiplicitous. The District Court denied the motion. After the jury verdict and sentencing, Defendant appealed.
- Judge(s):
- Kelly, O'Brien, and Gorsuch.
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