United States v. David Weimert

In the midst of the 2008-09 financial crisis, a Wisconsin bank called Anchor-Bank was struggling to stay above water. Under pressure to find cash to pay its own lenders, the bank’s president told vice president David Weimert to try to sell the bank’s share-in a commercial real estate development in Texas. Weimert, who is the defendant and appellant in this criminal wire fraud case, successfully arranged a sale that exceeded the bank’s target price by about one third. The deal also relieved the bank of a liability of twice the sale price.

Given the version of the facts we must accept for this appeal, however, Weimert saw an opportunity to insert himself .into the deal personally. He persuaded two potential buyers that he would be a useful partner for them. Both buyers included in their offer letters a term having Weimert buy a minority interest in the property. The bank agreed. It also agreed to pay Weimert an unusual bonus to enable him to buy the minority interest. We must also assume that the successful buyer, at least, would have been willing to go forward without Weimert as a partner,. and that Weimert deliberately misled his board and bank officials to believe that the successful buyer would not close the deal if he were not-included as a minority partner. The government. prosecuted Weimert for wire fraud on the theory that his actions added up to a scheme to obtain money or property by fraud, and the jury ■ convicted *354him on five of six counts of wire fraud under 18 U.S.C. § 1343.

We reverse and order judgment of acquittal. Federal wire fraud is an expansive tool, but as best we can tell, no previous case at the appellate level has treated as criminal a person’s lack of candor about the negotiating positions of parties to a business deal. In commercial negotiations, it is not unusual for parties to conceal from others their true goals; values, priorities, or reserve prices in a proposed transaction. When we look closely at the evidence, the only ways in which Weimert misled anyone concerned such negotiating positions. He led the successful buyer to believe the seller wanted him to have a piece of the deal. He led the seller to believe the buyer insisted he have .a piece of the deal... All the actual terms of the deal, however, were fully disclosed ,and subject to negotiation. There is no evidence that Weimert misled anyone about any material facts or about promises of future actions. While one can understand the bank’s later decision’ to fire Weimert when the deception about negotiating positions came to light, his actions did not add up to federal wire fraud. Weimert is entitled to judgment of acquittal. We order his prompt release from federal prison, on the stated terms of supervised release in his sentence, pending issuance of our'mandate.

I. The Standard of Review.

We review de novo the denial of a motion for judgment of acquittal. United States v. Durham, 766 F.3d 672, 678 (7th Cir.2014), citing United States v. Claybrooks, 729 F.3d 699, 704 (7th Cir.2013). We construe the evidence in the light most favorable to the government, asking whether a rational- trier of fact could have found the elements of the crime beyond a reasonable doubt. Durham, 766 F.3d at 678, quoting United States v. Love, 706 F.3d 832, 837 (7th Cir.2013).

Given our deférence to jury determinations nn evidentiary matters, we rarely reverse a conviction for mail or wire fraud due to insufficient evidence. See United States v. Mullins, 800 F.3d 866, 870 (7th Cir.2015) (“-Sufficiency challenges are very difficult to win_”). We have sometimes said that such appeals face “a nearly insurmountable hurdle.” E.g., United States v. Domnenko, 763 F.3d 768; 772 (7th Cir.2014), quoting United States v. Torres-Chavez, 744 F.3d 988, 993 (7th Cir.2014). The hurdle is not'actually insurmountable, though. See, e.g., Durham, 766 F.3d at 678-79 (reversing on two counts); United States v. Dooley, 578 F.3d 582, 588-89 (7th Cir.2009) (reversing on one count); see also United States v. Lake, 472 F.3d 1247, 1260 (10th Cir.2007); United States v. Izydore, 167 F.3d 213, 220 (5th Cir.1999); United States v. Goodman, 984 F.2d 235, 239-40 (8th Cir.1993). Even more to the point, the Supreme Court has reversed mail and wire fraud convictions that would have dramatically expanded the scope of the statutes. Skilling v. United States, 561 U.S. 358, 413-15, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) (affirming the reversal of honest-services wire fraud conviction); Cleveland v. United States, 531 U.S. 12, 26-27, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000) (reversing wire fraud conviction for failure to demonstrate .loss of property); McNally v. United States, 483 U.S. 350, 360-61, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). (reversing wire fraud conviction on honest services theory of fraud prior to statutory revision). We take a similar step here.

II. The Limits of Mail and Wire Fraud

A. The Breadth of Mail and Wire Fraud

Before giving a detailed account of the evidence, we explain the legal stan*355dards we apply. The wire fraud statute prohibits schemes to defraud or to obtain money or property by means of “false or fraudulent pretenses, representations,, or promises” if interstate wire or electronic communications are used to execute the scheme. 18 U.S.C. § 1343. To convict a person under § 1343, the government must prove that he “(1) was involved in a scheme to defraud; (2) had an intent to defraud;, and (3) used the wires in furtherance of that scheme.” United States v. Faruki, 803 F.3d 847, 852 (7th Cir.2015), quoting Durham, 766 F.3d at 678.

To prove a scheme to defraud, the government must show that Weimert made a material false statement, misrepresentation, or promise, or concealed a material fact. United States v. Powell, 576 F.3d 482, 490 (7th Cir.2009); see also Neder v. United States, 527 U.S. 1, 25, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (holding “materiality of falsehood” is an element of federal mail and wire fraud statutes). Intent to defraud requires proof that the defendant acted willfully “with the specific intent to deceive or cheat, usually- for the purpose of getting financial gain for one’s self or causing financial loss to another.” Faruki, 803 F.3d at 853, quoting United States v. Howard, 619 F.3d 723, 727 (7th Cir.2010).

Like its cousin, mail fraud, the wire fraud statute has been interpreted to reach a broad range of activity. Courts have taken .an expansive approach to what counts as a material misrepresentation or concealment in a scheme to defraud. As we will see, it is possible to put together broad language from courts’ opinions on several different points.so as to stretch the reach of the mail and wire fraud statutes far beyond where they should go.

First, for example, materiality has been defined in broad and general terms as having a tendency to influence or to be capable of influencing the decision-maker. Neder, 527 U.S. at 16, 119 S.Ct. 1827; United States v. Seidling, 737 F.3d 1155, 1160 (7th Cir.2013).

Second, the concept of a misrepresentation is also broad, reaching not only false statements of fact but also misleading half-truths and knowingly false promises. Powell, 576 F.3d at 490-91; United States v. Sloan, 492 F.3d 884, 890 (7th Cir.2007), citing United States v. Stephens, 421 F.3d 503, 507 (7th Cir.2005); see generally Durland v. United States, 161 U.S. 306, 312, 16 S.Ct. 508, 40 L.Ed. 709 (1896) (mail fraud not limited to common law fraud but includes- “representations as to past or present, or suggestions and promises as to the future”). It can also include the omission or concealment of material information, even absent an affirmative duty to disclose, if the omission was intended to induce a false belief and action to the advantage of the schemer and the disadvantage of the victim. United States v. Morris, 80 F.3d 1151, 1160-61 (7th Cir.1996), quoting Emery v. American General Finance, Inc., 71 F.3d 1343, 1346 (7th Cir.1995); see also United States v. Keplinger, 776 F.2d 678, 697-98 (7th Cir.1985).

Third, wire fraud does not require the false statement to be made directly to the victim of the scheme. Deception of someone else can suffice if it carries out the scheme. Seidling, 737 F.3d at 1160.

Fourth, it is no defense that the intended victim of ■ wire fraud was too trusting and gullible or, on the other hand, was too smart or sophisticated to be taken in by the deception. United-States v. Coffman, 94 F.3d 330, 333 (7th Cir.1996); see also United States v. Colton, 231 F.3d 890, 903 (4th Cir.2000) (“If a scheme to defraud has been or is intended to be devised, it makes no -difference whether the persons the schemers intended .to defraud are gul*356lible or skeptical, dull or bright.”) (citation omitted).

These and other expansive glosses on the mail and wire fraud statutes have led to their liberal use by federal prosecutors. As one future federal judge put it during his tenure as a prosecutor, these statutes are “our Stradivarius, our Colt 45, our Louisville Slugger, our Cuisinart — and our true love.” Jed S. Rakoff, The Federal Mail Fraud Statute (Part I), 18 Duq. L.Rev. 771, -771 (1980). Mail and wire fraud statutes “have long provided prosecutors with a means by which to salvage a modest, but dubious, victory from investigations that essentially proved unfruitful.” John C. Coffee, Jr. & Charles K. Whitehead, The Federalization of Fraud: Mail and Wire Fraud Statutes, in White Collar Crime: Business and Regulatory Offenses § 9.05, at 9-73 (1990).

The mail and wire fraud statutes have “been invoked to impose criminal penalties upon a staggeringly broad swath of behavior,” creating uncertainty in business negotiations and challenges to due process and federalism. Sorich v. United States, 555 U.S. 1204, 129 S.Ct. 1308, 1308-11, 173 L.Ed.2d 645 (2009) (Scalia, J., dissenting from denial of certiorari on scope of “honest services” theory of fraud). We must take care not to stretch the long arms of the fraud statutes too far. See Pasquantino v. United States, 544 U.S. 349, 377, 125 S.Ct. 1766, 161 L.Ed.2d 619 (2005) (Ginsburg, J., dissenting) (Supreme Court has “also recognized that incautious reading of the statute could dramatically expand the reach of federal criminal law, and we have refused to apply the proscription exorbitantly”).

B. Fraud and Commercial Negotiations

This case presents a test of'how far the mail and wire fraud statutes reach when parties negotiate a substantial commercial transaction that involves, as almost all will, the use of the-mails or interstate wire communications. Some deceptions in commercial negotiations certainly can support a mail or wire fraud prosecution. A party may not misrepresent material facts about an asset during a negotiation to sell it. For example, a seller or his agent may not falsely tell potential buyers or investors that a piece of property has no history of environmental problems if soil and groundwater contamination on the property was discovered the year before. The buyer would be led to purchase a property worth far less than she was led to believe, given the looming remediation costs. Similarly, a company may not inform a potential investor that it expects patent protection for its key intellectual property if its patent application was recently rejected as barred by prior art. The investor would be led to believe that he was investing in a valuable asset that was actually worthless. The misrepresentations materially alter one party’s understanding of the subject of' the deal.

In prior cases, we have also said that a company may not hide behind disclaimers while deliberately understating expected losses in disclosures to investors. The information would be material to the price buyers of securities are willing to pay. United States v. Morris, 80 F.3d 1151, 1167-68 (7th Cir.1996). Nor may a company choose to advertise the success of one investor in isolation while omitting the crippling losses of ninety percent of its investors. United States v. Biesiadecki, 933 F.2d 539, 541-43 (7th Cir.1991). Nor may a party falsify loan documents to defraud mortgage lenders, United States v. Sheneman, 682 F.3d 623, 629 (7th Cir.2012), forge a buyer’s signature on a check, United States v. Powell, 576 F.3d 482, 491 (7th Cir.2009), or use false adver*357tising to guarantee investors impossible returns, United States v. Sloan, 492 F.3d 884, 890-91 (7th Cir.2007). In short, the federal mail and wire fraud statutes reach a seller’s or buyer’s deliberate misrepresentation of facts or false promises that are likely to affect the decisions of a party on the other side of the deal.

These practices deviate far from behavioral norms for business transactions in a market economy governed by the rule of law. There are more difficult cases, however. “Not all conduct that strikes a court as shafp dealing or unethical conduct is a ‘scheme or artifice to defraud.’” United States v. Colton, 231 F.3d 890, 901 (4th Cir.2000) (alteration omitted), quoting Reynolds v. East Dyer Development Co., 882 F.2d 1249, 1252 (7th Cir.1989) (affirming summary judgment and sanctions for defendants in civil RICO case alleging failure to disclose information that home lots were not suitable for building). The mail and wife fraud statutes- “do not cover all behavior which strays from the ideal.” United States v. Colton, 231 F.3d at 901 (citation and internal quotation marks omitted). We have also explained that a corporate officer’s breach of fiduciary duty, when combined with a mailing or wire communication, is not sufficient to show mail or wire fraud. United States v. Kwiat, 817 F.2d 440, 444 (7th Cir.1987) (reversing convictions). And “we do not imply that all or even most instances of non-disclosure of information that someone might find relevant come within the purview” pf the mail and wire fraud statutes. United States v. Keplinger, 776 F.2d 678, 697-98 (7th Cir.1985). (affirming mail fraud convictions for scheme to submit false laboratory results on safety of medications).

C. Fraud and Negotiating Positions

As shown below, the central issue in this case is whether the mail and wire fraud statutes can be stretched to criminalize deception about a party’s negotiating positions, such as a party’s bottom-line reserve price or how important a particular non-price term is. We conclude that they cannot.

From strands of case law, it is true, one can piece together a mail or wire fraud case based on such deception' about negotiating positions. To track thfe specific rules we discussed above: First, information about a party’s negotiating position is surely material in the sense that it is capable of influencing another party’s decisions. Second, actionable deception can include false statements of fact, misleading half-truths, deceptive omissions, and false promises of future action. ■ All of these descriptions may fit deceptions about negotiating positions, at least if a negotiator’s present state of mind is treated as a fact. Third, the false statement may be made to someone other than the owner or holder of the money or property targeted by the scheme. And fourth, it is no defense that the intended victim either trusted the defendant too much or was too savvy to be fooled.

But Congress could not have meant to criminalize deceptive misstatements or omissions about a buyer’s or seller’s negotiating positions. See United States v. Coffman, 94 F.3d 330, 334 (7th Cir.1996) (“it would not do to criminalize business conduct that is customary rather than exceptional’ and is relatively harmless”). Buyers and sellers negotiate prices and other terms. To state the obvious, they will often try to mislead the other party about the prices and terms they are willing to accept. Such deceptions are not criminal.

To take a simple example based on price, suppose, a seller is willing to accept $28,000 for a new car listed for sale at $32,000. A buyer is actually willing to pay *358$32,000, but he first- offers $28,000. When that offer is rejected and the seller demands $32,000, the buyer responds:. “I won’t pay more than $29,000.” The seller replies:. “I’ll take $31,000 but not a penny less.” After another round of offers and demands, each one falsely labeled “my final offer,” the parties ultimately agree on a price of $30,000. Each side has gained from deliberately false misrepresentations about its negotiating position. Each has affected the other side’s decisions. If the transaction involves interstate, wires, has each committed wire fraud, each defrauding the other of $2,000? Of course not. But why not?

The government’s answer at oral argument was the absence of “intent to defraud.” That, answer begs the question. How do we recognize “intent to defraud” if a party has gained a better deal by misleading the other party about its negotiating position? If a party’s negotiation position is material for purposes of the mail and wire fraud statutes, each has obtained a financial gain by deliberately misleading the other.1

The better answer is that .negotiating parties, and certainly the sophisticated businessmen in this case, do not expect complete candor about negotiating positions, as distinct from facts and promises of future behavior. Deception about negotiating positions — about reserve prices and other terms and .-their, relative importance — should not be considered material for purposes of mail and wire, fraud statutes.

Even after receiving the government’s post-argument supplemental authority, we know of no other case in which a court has found that deceptive statements about negotiating positions amounted to a scheme to defraud under the mail or wire fraud statutes. This absence is consistent with more general understandings in the law.

In the Restatement (Second) of Torts treatment of fraud, for example, statements about a party’s opinions, preferences, priorities, and bottom lines are generally not considered statements of fact material to the transaction. See Restatement (Second) of .Torts § 538A cmts. b, g (distinguishing between representations of facts — where the maker has definite knowledge — and opinions — including a “maker’s judgment as .to quality, value, authenticity or similar matters as to which opinions may be expected to differ”). Rules of professional conduct for attorneys require honesty in dealing with others, but they draw a similar line on negotiation positions. See Model R., Prof. Conduct 4.1(a) cmt. 2 (“Under generally accepted conventions in negotiations, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category.... ”); see also G. Richard Shell, When Is It Legal to Lie in Negotiations:?, 32 Sloan Management Rev. 93, 96 (1991) (“There are thus no legal problems with lying about how much you might be willing to pay or .which, of several issues in a negotiation you value more highly. Demands and reservation prices are not, as a matter of law, material to a deal.”).

To ■ show how these general considerations govern this case, we lay out in Part III the sequence of negotiations in this sale. Then, in Part IV, we work through *359the more detailed legal analysis of the government’s ease against Weimert, including the issues posed by Weimert’s status as a corporate officer of one party to the deal,, acting under a disclosed conflict of interest. We recount the facts in the light reasonably, most favorable to the government. The question to keep in mind is whether the facts here go beyond misstatements or omissions about negotiating positions or are otherwise sufficient to support the wire fraud convictions.

III. The Sale

A. AnchorBank, Its Affiliates, and the Crisis of 2008-09

This case stems from a bank’s attempts in late 2008 and early 2009 to sell its interest in a commercial real estate development. The bank was actually: several companies, with a publicly traded holding company, Anchor BanCorp Wisconsin, Inc. (“ABCW”), at the top. ABCW owned both AnchorBank, fsb, a federal savings bank, and a non-bank subsidiary called Investment Directions, Inc., or “IDI,” which invested in real estate.

The boards and officers of the three companies interlocked. Defendant David Weimert was both a vice president of An-chorBank and the president of IDI. As IDI president, Weimert identified investment opportunities and managed development projects. In that capacity, he reported to the IDI board of directors, which had to approve any sales or purchases.

The financial crisis of 2008 put Anchor-Bank and ABCW in a difficult financial position. They were trying to negotiate extensions on a $116 million loan from U.S. Bank, with a sizable payment due on March 31, 2009, By late December 2008, the holding company realized it would have a difficult time avoiding default. Adding to .the pressure, federal bank regulators had told AnchorBank that its balance sheet was so shaky that it could not send a cash dividend to the parent holding-company to help with the payment to U.S. Bank;

B. • The Push to Sell Chandler Creek

One possible source of cash for the holding company was to have IDI sell assets and transfer the cash to the parent holding company to help with the loan' payment. On December 29, 2008, Mark Timmerman, president of the bank, told Weimert to try to sell IDI’s 50 percent interest in a Texas commercial real estate development known as Chandler Creek. Timmerman told Weimert he wanted to sell IDI’s interest for no less' than the book value' of its investment, about $6 million.

Weimert faced a big challenge. Witnesses testified uniformly that in the first quarter of 2009, the market for, selling commercial real estate was just terrible. Adding to the challenge, IDI owned only 50 percent of Chandler Creek. The other 50 percent was owned by The Burke Real Estate Group, which was the general part ner, meaning it had management control of the property. The Burke Group also had a right of first refusal if IDI tried to sell to anyone else. In addition, IDI and The Burke Group were each liable for the full $15 million mortgage on the property, and IDI had to carry the full $15 million as a liability on its books. Adding even more to the challenge, Timmerman wanted Wei-mert to sell the property in time to obtain cash for the March 31 payment to U.S. Bank.

Weimert had already tried twice in 2008 to sell the IDI interest to The Burke Group. Those overtures had been rebuffed. After receiving Timmerman’s December 29 ■ email, Weimert tried again, treating the sale as an urgent matter for the whole AnchorBank enterprise. ■ In early January 2009, he put together a written *360investor proposal for IDEs Chandler Creek interest and circulated it to potential buyers. The proposal estimated that IDEs 50 percent interest was worth approximately $16.8 million but said that IDI was willing to accept $9 million. Wei-mert’s efforts to find a buyer in January were not successful, though. Time was running out.

C. Weimert Secures Two Offers to Buy Chandler Creek

On January 27, 2009, Weimert went back to Brian Burke of The Burke Group in hopes of arranging a sale. Burke was still not interested, but he was shaken when he saw Weimert’s investor proposal. Realizing that IDI might sell to a stranger who would then become his partner, he continued talking with Weimert. The two sketched some possible terms of a transaction. Giving the government the benefit of Burke’s confused and inconsistent testimony on the point, we assume that Weimert suggested in this meeting that he buy about five percent of IDEs 50 percent share and that The Burke Group buy the other 45 percent.

While the Burkes considered the proposal, Weimert also contacted another potential buyer, Nachum Kalka, with whom Weimert had done deals before. Despite The Burke Group’s right of first refusal, he was interested in making a deal. Kal-ka’s interest could also help Weimert and IDI push The Burke Group to make an offer without further delay. Because of The Burke Group’s right of first refusal and the possibility that a bid by Kalka would help IDI even if The Burke Group bought the property, Weimert and Kalka discussed having IDI agree to pay Kalka a break-up fee to compensate him for his trouble if IDI sold to someone else. Kalka received the proposal and Chandler Creek’s financial statements from Weimert and forwarded the information to his investment partner.

In the second half of February, events moved quickly. About February 16, Wei-mert asked Richard Petershack, an outside lawyer for IDI, to draft a proposed “template” letter of intent for potential buyers of the Chandler Creek interest. Petershack testified that Weimert told him to use $8.5 million as the purchase price, with financing of $6.5 million available through An-chorBank. Weimert also told Petershack to include a term that Weimert said buyers were requiring: that Weimert himself “stay in the deal because of my institutional knowledge of the project.” Petershack also testified that Weimert told him that IDI had agreed to compensate him for his efforts in “facilitating the deal and finding potential investors” by paying him a fee of four percent of the purchase price. On this record, we must assume that Weimert was lying to Petershack at that time about the buyers requiring that he participate and IDI agreeing to the four percent fee.

Petershack prepared the template letter of intent as instructed. He sent copies to Weimert and to Kalka, and also to Anchor-Bank president Timmerman. By sending the draft to Timmerman, Petershack sought to confirm authority for Weimert’s participation in the deal and the fee. He also wanted to inform Timmerman of Kal-ka’s role as a “stalking horse” to push the Burkes to make an offer. Petershack received no word back from Kalka or Tim-merman on the substance of the letter of intent, either generally or on Weimert’s involvement in particular.

Two days later, on February 18, Wei-mert had dinner in California with Brian Burke and his father and business partner, William Burke. Weimert gave them a copy of the template letter of intent. He told them of Kalka’s interest as a competing buyer. To Weimert’s frustration, *361though, the Burkes were-not yet willing to make a formal offer, at least until another buyer had made an offer.

On February 22, 2009, Weimert called Kalka and his investment partner. Both Weimert and the partner agreed that Wei-mert’s involvement as a buyer would be beneficial; Weimert knew the property and had worked with the Burkes for several years. (Kalka’s testimony was unclear as to whether his partner or Weimert first proposed that Weimert participate as a buyer.) In a follow-up email to Weimert, Kalka later confirmed “it is imperative that you David Weimert be involved personally in the Chandler Creek transaction.” Weimert’s involvement needed to be “economic” to assure Kalka of Wei-mert’s services in overseeing the investment. Kalka wrote that Weimert “might show this,” presumably the email, “to your Board to make sure that this is happening.”

The following day, February 23, Wei-mert sent the IDI board of directors a memorandum on the Chandler Creek negotiations. He summarized key points from his conversations with Kalka and his partner. Kalka was to serve as a “stalking horse” in the investment and had ample funds to make the investment. In exchange, Kalka would receive $75,000 as a break-up fee if his offer was not selected. Finally, Weimert added: “It is imperative that Mr. Weimert be involved economically to assure his management — and investment liaison involvement in perpetuity while Mr. Kalka and or his investors are involved.” Weimert went on to note as a “bottom line ... [that] Kalka will not do this without me being'a Manager of the Investment and- Liaison to his Group and the Burke’s....” As best we can tell from the record, this. statement to the board about Kalka and his partner was true.

Turning to The Burke Group as a possible buyer, Weimert told the board that the Burkes’ participation was still possible, with the Burkes signaling in preliminary discussions that “they also desire my involvement both economically ... and my 10 year contribution toward the successful direction of this Project.” (Note the difference at this stage between what Kalka “required” and what the Burkes “desired.”) Weimert suggested that, to have sufficient funds to buy his share, he would require a fee of at least three percent of the purchase price and an additional one percent to help him pay off an outstanding note to AnchorBank.

About the same time, attorney Peter-shack sent Weimert a revised template letter of intent, which Weimert forwarded to Kalka on February 24. The revised template listed Weimert as buying a four and seven-eighths percent ownership of Chandler Creek and included the four percent fee for Weimert. Later that day, Kalka submitted a signed version of the letter of intent offering $8.5 million for the property. On February 25, Weimert forwarded the Kalka offer to The Burke Group. He explained that the IDI board would meet soon and encouraged the Burkes to make an offer. The Burke Group quickly..responded by sending its signed letter of intent to Weimert, but it offered only $8 million.

D. The IDI Board Approves and Sells to The Burke Group

By late February 2009, then, Weimert had secured two offers that exceeded Tim-merman’s target price for Chandler Creek by at least $2 million. But both offers also posed what all IDI directors and other bank officials recognized as a conflict of interest: Weimert was both a buyer and an officer of the seller. Weimert submitted both letters of intent to the IDI board *362of directors along with two memoranda that were central to the government’s case.2

The first, called “A-Personal Note,” was a short summary of the evolution of the deal. Weimert wrote falsely that he had “had no intention of being involved in this Project.” But the deal had evolved, he said, so that “The Kalka’s Group required [Weimert’s involvement], ... and Bill Burke actually felt that [Weimert] would continue to ‘Add a Positive Dimension’ to the Management of Chandler Creek.” In addition to describing his involvement falsely as “inadvertent,” Weimert said he needed to participate to close the deal.

Weimert’s second document, called “Evolution of This Deal,” also reported on his negotiations with Kalka and the Burkes. As part of the Kalka offer, Kalka had “insisted” that Weimert “run this- investment” and “have money in the deal'so T don’t run away.’ ” As for the Burkes, Weimert falsely told the board- that they continued to “be especially focused on my continued involvement.” Weimert concluded by recommending selling to The Burke Group. Although- it was offering a lower purchase price, the Burke' deal would also release IDI from its potential $15 million liability to Bank of America on the Chandler Creek mortgage.

The IDI board convened on February 27, 2009 to consider the sale of Chandler Creek. At the board meeting, Weimert presented each offer to the board and recommended a sale to The Burke Group. Hé also told the board that his participation " in the deal was necessary. ‘ The directors found this proposal unusual, to say the least. In- light of the conflict of interest that everyone recognized, the board excused Weimert from the meeting while it discussed the conflict issue with outside counsel.

The attorney advised the board that Weimert’s involvement was not illegal. He asked the board two questions: first, whether the transaction could be completed without Weimert’s involvement; and second, whether the transaction was necessary and in the best interest of the company. The board members said they understood. that Weimert “had to be involved or the Burkes were not going to be a purchaser,” and that the deal was good for the company, especially with the need to raise cash to make the looming payment due to U.S. Bank at the end of March. The attorney advised .the board to waive the conflict and go forward with the sale. Oh this advice, the board waived the conflict, accepted The Burke Group’s purchase offer, and approved the four percent fee for Weimert in the amount of $311,000.

According to David Omanchinski, a member of the AnchorBank board of directors, Weimert had also told him at about the time of the IDI board meeting that “he did not believe the deal could get done without his participation -in it,” and that Weimert would not have received his fee or any additional compensation if it had not been tied to The Burke Group deal.

The final terms of the deal were rather different from the terms proposed in the letter of intent and approved by the IDI board. IDI’s attorney worked on the revisions. There is no evidence that Weimert had anything further to do with IDEs side *363of the transaction. On behalf of IDI, the attorney actually removed Weimert’s participation from the purchase agreement itself. He reasoned that Weimert’s purchase was a matter between him and The Burke Group and was more appropriate for a side deal between them than as part of the primary transaction. The attorney also drafted the separate agreement for Weimert’s ownership, requiring Weimert to commit that he would in fact make the promised investment. In exchange for the four and seven-eighths percent ownership interest, Weimert would contribute $100,000 to his partnership with The Burke Group.

On March 30, IDI and The Burke Group closed the deal, in the nick of time for IDI to send the cash from the sale to the parent holding company, ABCW, .which then used it to pay U.S. Bank on March 31. The Burke Group bought IDEs 50 percent stake of Chandler Creek for $7,792,000 and relieved IDI of its mortgage obligation. The purchase was financed with a $6,233,000 loan from An-ehorBank. IDI also paid Kalka the agreed $75,000 break-up fee. And Weimert received his agreed fee and bought a share of Chandler Creek from The Burke Group.

E. Weimert’.s SEC Testimony and the Prosecution

At this point, one might think, all parties were satisfied with the deal. The Burke Group got a good deal and owned more than 95 percent of the Chandler Creek property. The bank' had sold the property for nearly $2 million more than it was willing to accept. It had also managed to move millions of dollars upstream to ABCW so that it could make its payment to U.S. Bank. And Weimert was hundreds of thousands of dollars ahead, with cash and a fractional - interest' in Chandler Creek.

Then the Securities and Exchange Commission investigated AnchorBank and its affiliates’ use of TARP funds. The investigation included the Chandler Creek deal, which could be viewed’as an indirect mechanism to channel AnchorBank’s TARP money through the loan to The Burke Group to IDI and then on to ABCW.

In April 2012, Weimert gave testimony before the SEC regarding the deal. He testified that the Burkes had not insisted on his involvement, but that instead he had told the Burkes he would “like to be part of the transaction.” Weimert said he had felt he “was the broker in the transaction and deserved a piece of the transaction.” Weimert further testified that he was “an earmark to the deal,” a description he claims he used to alert the IDI board that he “wanted to make sure that they understood that I wasn’t absolutely necessary for this deal.” All IDI directors testified at Weimert’s trial, though, that Weimert had not described his role as an “earmark” but had told them instead that his participation was required by the Burkes.3

In February 2014, a few weeks before the five-year statute of limitations would have run, a federal grand jury indicted Weimert on six counts of wire fraud. The indictment alleged a scheme to defraud IDI through materially false and fraudulent pretenses to obtain an ownership interest in IDEs share of Chandler Creek and to receive the four percent fee. Specific misrepresentations included Wei-mert’s affirmative statements that the Burkes required his involvement and his *364deception about who first proposed that he have a piece of the deal. Weimert pled not guilty. At trial, the jury convicted Weimert on fiv