United States v. Larry Lake

571 F. App'x 303
Court of Appeals for the Fifth Circuit·Decided June 10, 2014·No. 13-10780·Unpublished·Cited by 2 cases

Opinions

EDITH H. JONES, Circuit Judge:*

Appellant Larry Lake was convicted of concealing assets in contemplation of bankruptcy, 18 U.S.C. §§ 152(7) and 2, and tax evasion, 26 U.S.C. § 2701. He appeals both his conviction and sentence. We AFFIRM the conviction, REVERSE the sentence, and REMAND to the district court for resentencing.

BACKGROUND

Lake operated a car title loan business, VIP Finance, with six locations in the Dallas/Fort Worth area. VIP Finance allowed individuals with clear title to borrow money using their automobiles as collateral. As part of the loan agreement, customers were required to maintain a mechanical breakdown insurance policy on the vehicles. If a customer did not have insurance, he could purchase “auto club” insurance from VIP Finance. “Auto club” also included the cost of GPS monitoring, which allowed VIP Finance to locate a vehicle for repossession if a customer defaulted on his loan. At some point, however, the GPS monitoring company stopped providing services to VIP Finance, but VIP Finance continued to charge for the service without notifying customers of the changed condition. In addition to VIP Finance, Lake also owned Cash Auto Sales, which handled “auto club” memberships for VIP Finance, and a drugstore called Grapevine Drug Mart.

On November 17, 2004, with several money judgments against him, Lake filed a Chapter 13 bankruptcy petition. In the filing, Lake claimed assets between $0 at $50,000 and liabilities between $500,000 and $1,000,000. The day before he filed for bankruptcy, Lake transferred $2,763,000 from an E*TRADE account in his name to an E*TRADE account held jointly with his wife, Kathy. The same day, he also purchased a cashier’s check for $348,000 payable to Air I.Q. a shell company formed in his wife’s name. Lake did not disclose these transactions during the bankruptcy case, and his failure to do so is the basis of the bankruptcy crime charged in Count 1 of the superseding indictment. Lake was also charged with money laundering (Counts 2-10), conspiracy to structure transactions (Count 11) and tax evasion for tax years 2006-08 (Counts 12-14).

On November 18, 2009, law enforcement officers searched Lake’s home. They found $5,965,057 in cash and business records for Grapevine Drug Mart that postdate when Lake lied to his accountant that he had sold that business. On the day of the search, Lake told the agents he was still charging “auto club” customers for the GPS service that was no longer provided. Lake said that while no one had threatened litigation over the interruption in the GPS service, he was fearful of a class action lawsuit, and that fear motivated him to file for bankruptcy.

Lake was convicted of hiding assets in bankruptcy and tax evasion for the years 2006, 2007 and 2008, but he was and ac[306] quitted on the counts of money laundering and conspiracy to structure transactions. Lake was sentenced in the middle of his guideline range to four consecutive terms of 42 months, for a total of 168 months’ imprisonment.1

On appeal, Lake contends the evidence was insufficient to convict him of hiding assets in bankruptcy. He also challenges four sentencing enhancements authorized by the court.2

STANDARDS OF REVIEW

Lake moved for judgment of acquittal at the close of the Government’s case and at the close of evidence. Because of the timely objections, we review the sufficiency of the evidence de novo. United States v. Curtis, 635 F.3d 704, 717 (5th Cir.2011), cert denied, — U.S. -, 132 S.Ct. 191, 181 L.Ed.2d 99 (2011). This Court’s review is “highly deferential to the verdict.” United States v. Ollison, 555 F.3d 152, 160 (5th Cir.2009). When considering whether there is sufficient evidence, “this Court asks only whether the jury’s decision is rational, not whether it was correct.” United States v. Rodriguez, 553 F.3d 380, 389 (5th Cir.2008). All credibility determinations and reasonable inferences are resolved in favor of the verdict. United States v. Nguyen, 28 F.3d 477, 480 (5th Cir.1994)

The district court’s interpretation and application of the sentencing guidelines are reviewed de novo and the district court’s factual findings at sentencing for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008).

DISCUSSION

1. Sufficiency of the Evidence, Hiding Assets in Contemplation of Bankruptcy

1. Intent to Defraud

Lake argues that there was insufficient evidence that he transferred or concealed assets with the intent to defraud any creditor. See United States v. Willey, 57 F.3d 1374, 1380 (5th Cir.1995). The indictment charged Lake with knowingly and fraudulently concealing $2.73 million transferred from his E*TRADE account to an account jointly held with his wife and $348,000 transferred from his bank account to his wife’s shell corporation. Both transfers were completed the day before Lake filed for bankruptcy. Because the bankruptcy plan into which he entered provided full payment to the creditors who perfected their claims, he argues that there is insufficient evidence that he completed the transfers with fraudulent intent.

Lake’s argument is undermined by his own admission to investigators that he filed for bankruptcy in hopes of avoiding a class action by “auto club” customers who learned that they were billed for a nonexistent GPS tracking service. Despite his statement, Lake contends that no reasonable juror could have concluded that he transferred the funds to defraud customers who had not yet threatened to sue. Furthermore, Lake contends that “auto club” customers were unlikely to sue because the GPS services were provided for Lake’s benefit, as an aid to repossessing cars from borrowers who defaulted on their loans. The jury, however, was entitled to disbelieve Lake’s excuses.

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United States v. Larry Lake, 571 F. App'x 303 (5th Cir. 2014).

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