### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ Nos. 18-1656 & 18-3366
U NITED S TATES OF A MERICA, Plaintiff-Appellee,

v.

K EVIN L E B EAU and B RIAN B ODIE , Defendants-Appellants.

____________________ Appeals from the United States District Court for the Northern District of Il linois, Eastern Division. No. 14 CR 488 — Robert W. Gettleman , Judge

.

____________________
A RGUED S EPTEMBER 10, 2019

— D ECIDED F EBRUARY 4, 2020

____________________

Before W OOD , Chief Judge, and K ANNE and B RENNAN , Circuit Judges

. W OOD , Chief Judge . Intending to transf orm 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 ne xt year, unfortunately, theloan had fallen into default, and so the pair sought and obtained a forbearance agreem ent (later amended) from Amcore. These measures did not help either. Ultimately the2 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 convic ted both LeBeau and Bodie on all counts. The court sentenced each one to 36 months’ imprisonment and restitution of more than a million dollars; both have appealed. LeBeau raises three arguments in this court: fi rst, that the district court erred by failing to give the jury an instruction on materiality for the bank-fraud o ff enses; second, that the court should not have admi tt ed evidence related to certain victims’ losses in the scheme and their status as prior victims of fraud; and fi nally, that he received ine ff ective 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 su ffi ciency of the evidence to convict him. Finding no prejudicial error in any of these respects, we a ffi rm the district court’s fi nal judgments.
I
A At trial, the jury learned th at Kevin LeBeau owned and operated a health club located on approximately ten acres of land he owned in Aurora, Illinois. Around 2004, the business ran into di ffi culties, prompting LeBeau to team up with Brian Bodie to redevelop the land as a condominium project. Bodie

was an a tt ractive partner because he ran two mortgage companies, PreStar Financial Corp. and Mortgage Desk. The two submi tt ed a loan application to Amcore Bank, a federally insured fi nancial institution, in May 2004, and the bank gaveNos. 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 fi nancial statements to the bank. But from the start, he did not do so . LeBeau failed to disclose morethan $130,000 in outstanding personal loans in his initial personal fi nancial statement, which he submi tt ed in September 2004; he repeated the omission ina second statement submitted 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 le tt er 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 le tt er to Amcore requesting a forbearance agreement for the defaulted loan. In that letter, Bodie represented that he and LeBeau had begun the formal process to obtain rezoning and development permissions from the city. This was false: infact, they had only informally discussed this possibility with city o ffi cials.
Amcore fi led a foreclosure complaint in state court in August 2006. For the next several months, discussions among the defendants, along with their a tt orney, Robert Schlyer, about a possible forbearance agreement took place. LeBeau and Bodie

o ff ered to make payments toward the loan principal and interest, and they represented that they had external investors commi tt ed 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 development project from Delore s and Kenneth Palmquist. Herepresented to the Palmquists that the condominium development 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 we re 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.

Ma tt ers were no be tt er for LeBeau and Bodie by March 2007: they were still unable to ful fi ll their obligations under the loan, and so they sought an amended forbearance agreement from the bank. In April, Schlyer sent materials to Amcore indicating that the de fendants had assembled a development team, the zoning ph ase of the project would be completed by June 2007, developm ent was underway on the parcel, and there were three subscribers ready to invest $1.5million in the development company. None of these representations was true. They had the desired e ff ect, however, when Amcore agreed to enter an am ended 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 sheri ff ’s sale, and it was ultimately sold by Amcore’s successor, BMO Harris, for $375,000. None of the individual investors recouped their investment principal.

B On August 28, 2014, a grand juryreturned 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 a ff ecting a fi nancial institution, 18 U.S.C.§ 1343, and one count of bank fraud, 18 U.S.C. § 1344. 17-CR30 (N.D. Ill.)). On June 29, 2016, th e grand jury returned an eight-count superseding in dictment. The superseding indictment eliminated two of the false-statement counts and associated allegations against Bo die, reorganized some of the counts, added more recent co nduct 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 coun ts 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 submi tt ed 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 establis h that (1) there was a scheme to defraud a bank, (2) the defe ndants knowingly executed or

a tt empted to execute the scheme, (3) the defendants acted with the intent to defraud, and (4) at the time of the charged6 Nos. 18-1656 & 18-3366

o ff ense the deposits of the bank were insured by the Federal Deposit Insurance Corporation. The instruction did not state that the government was requir ed to prove the “scheme involved a materially false or fraudulent pretense, representation, or promise ...,” as recomme nded in the Seventh Circuit Pa tt ern Criminal Jury Instructions. See Pa tt ern Criminal Jury Instructions of the Seventh Circuit (2012 Ed.) (plus 2015–2017 and 2018 changes), h tt p://www.ca7.uscourts.gov/pa tt ernjury-instructions/7th_criminal_jury_instr.pdf (“Pa tt ern Instr.”), at 447. As noted earlier, the jury convicted both defendants 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 a tt empts to execute, a scheme or arti fi ce—(1) to defraud a fi nancial institution ... shall be fi ned not more than $1,000,000 or imprisoned not more than 30 years, or both.” Subpart (2) prohibits a scheme or arti fi ce “to obtain any of the moneys, ... or other property owned by, or under the custody or control of, a fi nancial institution, by means of false or fraudulent pretenses, representations, or promises .” § 1344(2). Counts One, Two, and Three of the superseding indi ctment (the only ones that referred to section 1344) all accused the defendants of o ff enses under section 1344(1): “knowingly participat[ing] in a scheme to defraud a fi nancial institution,” Count One, ¶¶ 2, 11, or “knowingly execut[ing] and a tt empting 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 section 1344 counts prior to trial, the government stated that because it had not brought charges under section 1344(2), materiality was not an element and there was no need for an instruction on it. The district co urt said, “I assume the defendants 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 described in Counts One, Two, and Three of the indictment; and2) The defendant knowingly executed or attempted to execute the scheme; and3) The defendant acted with the intent to defraud; and 4) At the time of the charged o ff ense the deposits of the bank were insured by the Federal Deposit Insurance Corporation.
This instruction mirrors the Pa tt ern Instructions, with the key exception that it does not ask the jury to decide whether“the scheme involved a materially false or fraudulent pretense, representation, or promise.” See Pa tt ern Instr. at 447. LeBeau asserts that this omi ssion impermissibly relieved the8 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 Supr eme Court held that “materiality 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 Nederrequires “district courts [to] include materiality in the jury instructions for section 1344.” United States v. Reynolds , 189 F.3d 521, 525 n.2 (7th Cir. 1999). The Commi tt ee Comment to the Pa tt ern Instruction for section 1344 is even more explicit: Although the Seventh Circuit has not yet addressed the application of Nederto § 1344(1) speci fi cally, 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 admonitions in Nederand Reynolds , this instruction has been modi fi ed to re fl ect this requirement.

Pa tt ern 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 additional materiality element, we said, was required only when section 1344(2) was charged. Id.
The be tt er course, consistent with Neder, is to require the materiality instruction on a ll bank-fraud charges, whetherNos. 18-1656 & 18-3366 9

brought under section 1344(1) or (2). The government has informed us that this is its cu rrent 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 materiality 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 a ffi rmativelyconsented before trial to the instruction without the materiality 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 nevertheless later a tt ack that instruction for plain error. F ED

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. P. 30(d) and 52(b). “However, a defendant whowaives—rather than forfeits—his objection cannot avail himself of even the demanding pl ain error standard of review.” United States v. Natale, 719 F.3d 719, 729 (7th Cir. 2013). “Although passive silence with rega rd to a jury instruction permits plain error review ... a defendant’s a ffi rmative approval of a proposed instruction results in waiver.” Id. We have “strictly applied this rule to a ffi rmative expressions of approval without examining whether the statements were a ‘knowing and intentional decisi on’ or resulted from ‘negligently bypassing a valid argument.’” Id. “As a result, a ffi rmative 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 a ffi rmatively approve the court’s instructions an d that the interests of justice require us to overlook any waiver that occurred. The fi rst point fi nds no support in the record . The judge could not have10 Nos. 18-1656 & 18-3366

been more direct. After the go vernment explained why it wasnot proposing a materiality instruction, the judge said “I assume the defendants agree to” an elements instruction that omi tt ed 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 con fi rm 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 genuine 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. Attimes, there may be some ambiguity in the defendant’s statement, and so the court must deci de whether it is looking at waiver or the type of negligent oversight that triggers plainerror review. See Natale, 719 F.3d at 729–30. In this case, however, we see no such ambiguity. We note as well that we speculated 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 di ffi cult to square with the Supreme Court’sNos. 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 enou gh to support plain-error review, the omission of the materiality element from LeBeau’s jury instruction did not a ff ect 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 in fl uencing the decision of the person to whom it was addressed.” See Pa tt ern Instr., 18 U.S.C. §§ 1341 & 1343 De fi nition of Material, at 431 (cross-referenced in Comment to § 1344(1) at 448). LeBeau candidly acknowledges that the jury instructions given in Nederand Reynolds were found to be su ffi cient or at worst harmless error despite omi tt ing 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) ( fi nding in the health-services fraud context that omission of an explicit reference to materiality in the jury instruct ion was not plain error because the instructions viewed in thei r 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 a ffi rmatively consented to proposed language. Moreover, even if he merely forfeited this point, any possible error did not a ff ect his substantial 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’ lo sses as a result of the fraudulent 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); F ED

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. P. 52(b).“On plain-error review, we may reverse if: (1) an error occurred, (2) the error was plain, (3) it a ff ected the defendant’s substantial rights, and (4) it seriously a ff ected the fairness, integrity, or public reputation of the proceedings.” Thomas , 933 F.3d at 690. “Plain error will be found only when the exclusion of the erroneously admi tt ed evidence probably would have resulted in an acqui tt al.” United States v. Rangel , 350 F.3d 648, 650 (7th Cir. 2003). At trial, the government introduced evidence showingthat Amcore’s successor eventually foreclosed on the property and recouped only $375,000—far less than the remaining balance on the loan—in a sheri ff ’s sale. The jury also heard evidence that individual invest ors 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, testi fi ed about having previously been a victim of an unrelate d 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 afraud charge that the government is required to prove in order to sustain a conviction.” This evidence, he says, amounts to “victim impact testimony” that should have been excludedNos. 18-1656 & 18-3366 13

under Federal Rule of Evidence 403, as it has li tt le or no probative value and is highly prejudicial. The government responds that the evidence was re levant because it showed the scope and methods of the frau dulent scheme and helped to “establish defendants’ mens rea , including knowledge that their e ff orts to avoid payment and delay foreclosure could cause substantial risk of loss. ” The government also arguesthat the evidence of LeBeau’s outstanding debt was admissible for the purpose of supportin g the charge that the personal fi nancial statements he fi led 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 distri ct 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 defe nse, 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 evidence of pecuniary losses was unnecessary given the amountof other evidence produced at trial supporting the jury’s verdict, we cannot say that LeBeau probably would have been acqui tt ed but for this contested evidence.

C Finally, LeBeau argues that th e 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 ine ff ective assistance of14 Nos. 18-1656 & 18-3366

counsel in violation of his Sixth Amendment rights. We generally 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 ineffectiveness claim again in a moti on under 28 U.S.C. § 2255) we will examine it. In his sentencing memorandum, LeBeau agreed to a total loss fi gure 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 de fi cient, he must have “made errors so serious th at 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 forbearance 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” andNos. 18-1656 & 18-3366 15

acted recklessly by “clos[ing] its eyes” to phony loan applications and questionable claims ab out the solvency of the mortgagors involved. Id. at 907–10. LeBeau contends that Amcore was equally reckless here because it knew that LeBeau and Bodie were in dire fi nancial straits and ignored the advice ofits own lawyers when it entered into the forbearance agreem ents. 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 conclu sion is not binding on another. 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 partof the defendants’ fraudulent scheme involved raising significant funds to pay the bank inexchange 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 commi tt ing fraud on others. Whether the bank was reckless is debatable and it is not certain whatthe 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 a tt ack on the16 Nos. 18-1656 & 18-3366

restitution order. We see neither de fi cient performance nor prejudice, and so we fi nd no violation of his Sixth Amendment 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 su ffi ciency 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 omissi on does not result in waiver, see F ED

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. P. 12(b), it does result in forfeiture, see United States v. Ross , 77 F.3d 1525, 1536 (7th Ci r. 1996). Accordingly, we review whether the superseding indictment is time-barred only for plain error. F ED

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. P. 52(b). The superseding indictment, which is the one on whichBodie focuses, was filed on June 29, 2016. The limitations period for the crimes charged is ten years. 18 U.S.C. § 3293(1). The superseding indictment char ged Bodie with violations of section 1344 stemming from conduct in January and May2007, and with violations of section 1014 stemming from conduct in July 2006 and April 2007. All conduct charged occurred within the ten-year period extending backward fromJune 29, 2016. On its face, therefore, the superseding indictment 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 supersedingNos. 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 chargin g new conduct that is independently within the limitations period set by the new indictment. Because all char ges 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 submission of false personal financial statements. This conduct was also charged in the original in dictment, 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.

BLast, Bodie contests the sufficiency of the evidence to convict him. Bodie’s charges stem from the defendants’ efforts to obtain the original and amen ded 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 verdic t only if no rational trier offact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Garten , 777 F.3d18 Nos. 18-1656 & 18-3366

392, 400 (7th Cir. 2015). This is a “heavy burden” for the defendant. United States v. Brandt, 546 F.3d 912, 915 (7th Cir. 2008). We will not re-weigh the ev idence 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 attempt[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. Thefalse statements discussed in Count 6, along with other evidence, support this charge. Count 2 charges a scheme to defraud with the deposit of the Palmquists’ money as the execution. The record shows that th e defendants fraudulently obtained a $300,000 investment from Delores and KennethPalmquist in exchange for a purported interest in the property, and they used $150,000 of it as consideration for the original forbearance agreement with the bank. Personnel from the bank testified that this paymen t 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 in troduced into evidence a letter Bodie sent to Amcore Bank on July 21, 2006, requestingNos. 18-1656 & 18-3366 19

a forbearance agreement on the defaulted loan he and LeBeaupreviously obtained from the bank. In the letter, Bodie indicated 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 wewill refinance the loan with another financial institution. I hope these terms meet with your approval, as we are confident our zoning request will meet with approval 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 in troduced 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 investors totaling $1.5 million. Bo die hired someone to produce these documents. The evidence at the trial, however, indicated 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 al so supported the charges in Count 8. It learned that on April 23, 2007, Schlyer sent the20 Nos. 18-1656 & 18-3366

bank a letter and other materials representing that the defendants had formalized an invest ment mechanism for the development, that the subscription agreements were genuine, that they had assembled a developm ent team, and that they expected zoning to be complete by June 2007. These materialssupported the defendants’ request for an amended forbearance agreement, which the ba nk granted on May 8, 2007. Bodie signed this agreement. Bodie disputes his knowledge of both of Schlyer’s April 2007 communications with the ba nk 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 testim ony, and in fact did not. It was rational for the jury to conclude that the evidence established beyond a reasonable doubt that Bodie knowinglyand intentionally made, and caused others to make, false representations to Amcore about the status of the development in order to obtain the forbe arance agreements. We therefore reject his contention that the evidence was insufficient to support the jury’s verdict.
IV
We A FFIRM the district court’s fi nal judgments in both of these appeals.