FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS (D.C. No. 2:15-CR-20034-CM-1)
T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public
Defender, and Thomas W. Bartee, Assistant Federal Public
Defender, with him on the briefs), Office of the Federal
Public Defender for the District of Kansas, Topeka, Kansas,
appearing for Appellant.
N. Capwell, Assistant United States Attorney (Thomas A.
Beall, United States Attorney, with her on the brief), Office
of the United States Attorney for the District of Kansas,
Kansas City, Kansas, appearing for Appellee.
TYMKOVICH, Chief Judge, MATHESON, and MORITZ, Circuit Judges.
MATHESON, Circuit Judge.
convicted Matthew Williams of bank fraud in violation of 18
U.S.C. § 1344(1), and aggravated identity theft in
violation of 18 U.S.C. § 1028A. He appeals and asks that
we reverse his convictions because the evidence against him
Williams began a mortgage loan application at Pulaski Bank
(the "bank") using his father's personal and
financial information and his status as a Purple Heart
veteran. After his father received the application packet in
the mail, he called the bank to explain he had not applied
for a loan. The bank referred the matter to law enforcement,
but continued to work with Mr. Williams to process the loan
and obtain additional documents to clarify the
applicant's identity. The bank sent Mr. Williams a notice
of incompleteness because it lacked several required
documents, signatures, and a photo identification. In
response, Mr. Williams provided some of the required
documents to the bank, including a fake earnings statement
and a letter expressing his intent to proceed with the loan.
The bank sent a final notice of incompleteness to Mr.
Williams. Mr. Williams did not respond, and the bank closed
his application file.
Williams argues his misrepresentations on the incomplete
application could not support a bank fraud conviction because
they (1) were not material to the bank's decision to
issue him a loan; and (2) did not impose a risk of loss on
the bank. Exercising jurisdiction under 28 U.S.C. §
1291, we affirm Mr. Williams's bank fraud and aggravated
identity theft convictions.
Williams challenges the sufficiency of the government's
evidence, which requires us to view the evidence in the light
most favorable to the Government. We present the factual
testimony at trial established that the bank has a four-step
process for issuing mortgage loans: (1) application; (2)
processing; (3) underwriting; and (4) closing. Each step has
its own verification processes and safeguards.
in the application phase, a loan officer:
• Helps a potential borrower fill out a preliminary
• Runs a credit report;
• Requests verification documents, such as a photo
identification ("ID"), pay stubs, bank statements,
and tax returns; and
• Adjusts the information on the preliminary application
as necessary based on the verification documents.
applications for a loan guaranteed by the U.S. Department of
Veterans Affairs (a "VA loan") require an addendum
confirming the VA will insure the loan. The loan application
packet consists of the preliminary application, the VA
addendum, around 30 disclosures to the borrower that require
signatures,  and a letter indicating the borrower's
intent to proceed. The borrower must sign and date all of the
documents in the packet and return them to the bank.
at the processing step, a processor reviews the
borrower's credit report, calculates available income,
verifies the reported income, and reviews the application
packet. The bank generally requires a complete preliminary
application packet before advancing the loan to this second
stage. The bank will sometimes overlook deficiencies in
completeness to advance a loan. An employee said:
Well, they're supposed to date it but we do have people
who don't date it. We don't not [sic] accept it if
it's not dated . . . Well, I mean, they're supposed
to date it. . . No, we're not going to not accept this
application 'cause it's not dated.
ROA, Vol. 2 at 162-63. She also explained: "Now, if
someone's taking a long time or maybe we've just got
a little bit of documentation, we'll go ahead and turn it
in so we can get the file going. So, we don't always have
all the documentation when it goes to a processor."
Id. at 144.
after the processor's work is complete, the application
goes to the third stage: underwriting. The underwriter
decides whether to approve a loan. Underwriting involves
review of the applicant's credit report, income, assets,
debts, employment history, the home appraisal, and whether
the applicant has sufficient funds to make the down payment
and pay closing costs. The underwriter's options include
suspending the application for additional information,
approving it with conditions, or just approving it.
if the underwriter approves, the loan goes to the final
stage: closing. The closer runs an additional credit search,
conducts a title search, and verifies the borrower's
employment, title insurance, and homeowner's insurance.
The closer also prepares the final loan document for the
borrower's signature. Until the completion of closing,
the bank does not commit to loaning money.
Williams's Loan Application
19, 2014, Mr. Williams entered into a contract to purchase a
home in Kansas for $480, 000.
25, 2014, Mr. Williams called Theresa Mentzel, a loan officer
at the bank, to inquire about a loan. She asked him questions
to prepare a mortgage application. He falsely told her that
his legal name was Earl Williams, who is his father, and
provided her with his father's social security number,
date of birth, and Texas address. He also gave her, as if it
were his own, the name of Earl Williams's current
employer, monthly income and expenses, and bank account
information. He authorized her to run a credit report on
"Earl Williams, " which she did. Mr. Williams told
Ms. Mentzel he wished to apply for a VA loan. He said, again
falsely, that he was exempt from the high funding fee
applicable to VA loans because he had received a Purple Heart
and was on VA disability. Ms. Mentzel used this information
and obtained a VA certificate of eligibility, which confirmed
Earl Williams was a veteran, exempt from paying a funding
fee, and qualified for a low interest rate.
30, 2014, the bank sent a copy of the application, which
included information provided during Mr. Williams's phone
call, and the necessary disclosure forms to Earl
Williams's Texas address. Earl Williams received the
packet, called the bank, and spoke with Ms. Mentzel's
assistant, Judith Atkinson. He told her that he had not
applied for a loan and was concerned because the loan
application included his social security number. Ms. Atkinson
alerted her manager but was told to "just proceed on the
loan." ROA, Vol. 2 at 194-95
DeRousse, a senior vice president at the bank with
responsibility for monitoring fraud and loss, became involved
with the loan application at some point following Earl
Williams's call. Ms. Mentzel was unsure "who was
who, or who was telling the truth, " or whether there
had been a mistake and Ms. DeRousse thought "[i]t could
still be, in [her] mind, an error" and still viewed Mr.
Williams as "a person who might be a potential
customer." Id. at 227, 228, 181. Aware that
critical loan documents were missing, and still viewing Mr.
Williams as a potential client whom she did not want to
"interrogat[e], " Ms. DeRousse turned the
investigation over to law enforcement. Id. at 228.
She determined the bank was not then at a risk of loss, and
she decided she would not investigate further unless Mr.
Williams submitted documents that would allow the bank to
proceed with his loan application. She told the bank's
mortgage officers to notify her if Mr. Williams provided
her manager's directions, Ms. Atkinson called Mr.
Williams and asked him to submit the disclosure forms and his
photo ID. He said he would come to the bank the following
week with the requested documents, but he did not.
August 8, 2014, Ms. Atkinson emailed Mr. Williams a notice of
incompleteness. The notice advised he had 10 business days to
provide the requested information or the bank would send a
final notice of incompleteness.
August 19, 2014, Mr. Williams provided the bank with the
following documents, all using his father's name: (1) an
undated, electronically-signed loan application, (2) two
signed but undated disclosure forms, including a notice of
intent to proceed with the loan application, and (3) a fake
earnings statement showing monthly net wages of $3, 275.25.
He also arranged for the Defense Finance and Accounting
Service to send the bank a letter verifying that Earl
Williams was receiving $3, 585 in monthly retirement pay. Mr.
Williams did not provide a photo ID, which the bank required
from every customer.
August 22, 2014, the bank emailed a final notice of
incompleteness to Mr. Williams. The notice advised that he
had five business days to provide the requested information,
or the bank would close his file. Mr. Williams did not
respond with the required documents, so the bank closed his
application. Mr. Williams's application never made it to
the underwriting phase because the bank "never had
enough documentation- complete documentation to send it to
the underwriter." ROA, Vol. 2 at 166.
jury in the District of Kansas returned a two-count
indictment against Mr. Williams. Count 1 charged bank fraud
in violation of 18 U.S.C. § 1344(1), and Count 2 charged
aggravated identity theft in violation of 18 U.S.C. §
Trial and Oral Motion for Judgment of Acquittal
trial, the Government called nine witnesses. Mr. Williams did
not present evidence. The testimony established the facts
close of the Government's evidence, Mr. Williams moved
for a judgment of acquittal under Federal Rule of Criminal
Procedure 29 on the bank fraud charge-Count 1-and argued the
Government had failed to prove two essential elements: (1)
that his statements were material to the bank's decision
as to whether to issue him a loan, and (2) that the bank
suffered a risk of loss or civil liability. He also argued
the aggravated identity theft charge-Count 2-was invalid
because it was premised on the bank fraud charge. The
district court denied the motion.
jury found Mr. Williams guilty of both charges.
Post-Trial Motion for Judgment of Acquittal
Williams filed a post-trial motion for a judgment of
acquittal under Rule 29, reasserting his arguments from the
close of evidence. The district court again denied the
motion. It ruled there was sufficient evidence to show the
bank suffered a risk of loss because Mr. Williams submitted a
fraudulent loan application and expressed his intent to
proceed with it. The materiality element also was satisfied,
the district court ruled, because Mr. Williams applied for a
VA home mortgage loan and his misrepresentations influenced
the bank's decision whether to issue the loan. Because
the evidence was sufficient on Count 1, the court said it
also was sufficient on Count 2.
Williams received a prison sentence of 27 months-three months
for bank fraud and 24 months for aggravated identity theft.
The district court also imposed a two-year term of supervised
Williams challenges the sufficiency of the evidence
underlying both of his convictions. Because the aggravated
identity theft conviction was premised on the bank fraud
conviction, the Government and Mr. Williams agree that
whether the evidence was sufficient for the bank fraud
conviction is the determinative issue on
Williams argues the Government failed to prove the first
element of bank fraud because it failed to show that his
misrepresentations (1) were material, or (2) imposed a risk
of loss on the bank. We disagree. Based on the trial
evidence, a rational jury could find that Mr. Williams's
misrepresentations were both material and imposed a potential
risk of loss on the bank.
General Legal Background
Standard of Review
review [a] sufficiency of the evidence [challenge], we engage
in de novo review, considering the evidence in the light most
favorable to the government to determine whether any rational
jury could have found guilt beyond a reasonable doubt."
United States v. Los Dahda, 853 F.3d 1101, 1106
(10th Cir. 2017), petition for cert. filed, (July 7,
2017) (No. 17-43). "[W]e consider all of the evidence,
direct and circumstantial, along with reasonable inferences[,
] . . . [b]ut we do not weigh the evidence or consider the
relative credibility of witnesses."
Id. Thus, our review of the evidence is
"highly deferential." United States v.
Bowen, 527 F.3d 1065, 1076 (10th Cir. 2008) (quotations