UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ROY LYNN WESBERRY, 

 Defendant - Appellant. 

No. 15-7051 

(D.C. No. 6:14-CR-00019-RAW-1) 

(E.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BRISCOE, BACHARACH, and McHUGH, Circuit Judges. 

_________________________________ 

 Mr. Roy Lynn Wesberry appeals his conviction for bank fraud and 

conspiracy to commit bank fraud, arguing that the trial evidence was 

insufficient for a finding of guilt, that the district court should have given 

his proposed instruction on “advice of counsel,” and that the district court 

erred in calculating the guideline sentencing range. We affirm the 

 

*

 The Court concludes that oral argument would not materially aid our 

consideration of the appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 

34.1(G). Thus, we have decided the appeal based on the briefs. 

 Our order and judgment does not constitute binding precedent, except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

It may be cited, however, for its persuasive value under Fed. R. App. P. 

32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

July 12, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

conviction, but we direct the district court to vacate the sentence and 

resentence Mr. Wesberry. 

I. Mr. Wesberry committed bank fraud through a nominee loan 

scheme. 

The charges grew out of an alleged scheme involving nominee loans 

to defraud the First National Bank of Davis. First National was a smalltown bank in Davis, Oklahoma that provided banking services to farmers, 

business owners, and consumers in the Davis area. First National was 

insured by the Federal Deposit Insurance Corporation and regulated by the 

Office of the Comptroller of the Currency (OCC). 

First National closed on March 11, 2011. By that time, the bank had 

failed from substantial unpaid loans to Mr. Wesberry, his wife, and their 

affiliated companies. Although OCC regulations imposed a legal lending 

limit of $1.2 million to any one customer, Mr. Wesberry, his wife, and 

their companies owed First National an estimated $9.6 million. This sum, 

which dwarfed the bank’s loan reserves of slightly less than $1 million, 

caused First National to fail. 

The government charged that Mr. Wesberry and First National’s 

President and Chief Executive Officer, W.A. “Dub” Moore, attempted to 

hide Mr. Wesberry’s debts from First National and federal regulators by 

arranging loans to Mr. Wesberry in others’ names. The funds from those 

loans were used to clear Mr. Wesberry’s unpaid loans from First National’s 
3 

records: the individuals and companies who took out the nominee loans 

were shown in the loan documents as responsible for the loans, but the 

proceeds of the loans were credited to Mr. Wesberry’s account. The 

nominee loans were made shortly after the OCC’s arrival to inspect the 

bank. 

Mr. Wesberry was convicted on four counts of bank fraud and aiding 

and abetting (in violation of 18 U.S.C. §§ 1344 and 2) and one count of 

conspiracy to commit bank fraud (in violation of 18 U.S.C. § 1349). Mr. 

Moore pleaded guilty to bank fraud and testified against Mr. Wesberry. At 

sentencing, the district court found that (1) the losses caused by the fraud 

exceeded $2.5 million, requiring an 18-level offense enhancement, and (2) 

the offense “substantially jeopardized the safety and soundness of a 

financial institution,” triggering a 4-level offense enhancement. See 

U.S.S.G. § 2B1.1(b)(1)(J), (b)(16)(B)(i) (2014). The district court 

sentenced Mr. Wesberry to concurrent terms of 87 months in prison, which 

was at the bottom of the guideline range. 

II. The evidence was sufficient to support Mr. Wesberry’s conviction 

on each count.

 Mr. Wesberry argues that the government presented insufficient 

evidence of bank fraud and conspiracy to commit bank fraud. “We review 

the denial of a motion for judgment of acquittal, and hence the sufficiency 

of the evidence to support the jury verdict, de novo.” United States v. 
4 

Vernon, 814 F.3d 1091, 1098-99 (10th Cir.) (internal quotation marks 

omitted), petition for cert. filed, (U.S. May 9, 2016) (No. 15-1368). In 

engaging in de novo review, we consider the evidence in the light most 

favorable to the government. Id. at 1099. Because a rational trier of fact 

could have found Mr. Wesberry guilty beyond a reasonable doubt, his 

challenge fails. 

 To obtain a conviction for defrauding a financial institution under 

§ 1344(1), the government had to prove three elements: 

1. The defendant knowingly executed or attempted to execute a 

scheme or artifice to defraud a financial institution. 

2. The defendant had the intent to defraud a financial institution. 

3. The bank involved was federally insured. 

United States v. Bowling, 619 F.3d 1175, 1181 (10th Cir. 2010). To prove a 

conspiracy under § 1349, the government had to show that 

1. two or more persons agreed to violate the law, 

2. the defendant knew the essential objectives of the conspiracy, 

3. the defendant knowingly and voluntarily participated in the 

conspiracy, and 

4. the alleged coconspirators were interdependent. 

United States v. Fishman, 645 F.3d 1175, 1186 (10th Cir. 2011). 

 Mr. Wesberry makes four arguments to support his challenge to the 

jury verdict: 

1. Nominee loans are not per se illegal. 
5 

2. He participated in the loans at First National’s request. 

3. He was “fully transparent” in seeking the loan proceeds. 

4. He did not participate in the nominee loan underlying Court 4. 

These arguments lack merit. 

 First, although nominee loans are not inherently illegal, they can 

constitute a crime when “used to deceive a financial institution about the 

true identity of a borrower.” United States v. Waldroop, 431 F.3d 736, 741 

(10th Cir. 2005). When those loans are knowingly used to flout regulations 

designed to protect a bank’s financial integrity, a jury can find an intent to 

defraud the bank. United States v. Weidner, 437 F.3d 1023, 1034 (10th Cir. 

2006). There was ample evidence of Mr. Wesberry’s agreement to take 

funds from nominee loans to conceal his remaining debts from OCC 

regulators and First National. 

 Second, Mr. Moore’s alleged approval of the nominee loans would 

not excuse Mr. Wesberry’s guilt. “It is the financial institution itself—not 

its officers or agents—that is the victim of the fraud . . . § 1344 proscribes. 

It follows that bank customers who collude with bank officers to defraud 

banks may also be held criminally accountable either as principals or as 

aiders and abettors.” Waldroop, 431 F.3d at 742 (brackets, ellipsis, and 

internal quotation marks omitted). 

 Third, the jury could reasonably conclude that Mr. Wesberry and Mr. 

Moore had not acted with transparency. Mr. Moore admitted that he and 
6 

Mr. Wesberry had conspired to pay off Mr. Moore’s account overdraft1

 and 

“get[] his loans current for the regulators.” Appellant’s App’x Vol. 2, at 

363. And Mr. Moore did not inform First National’s Board of Directors 

that the money from the nominee loans was going to Mr. Wesberry; if Mr. 

Moore had made this disclosure, the Board would not have approved the 

loans. Id. at 382-83. 

 Mr. Wesberry adds that there was no real deception because the OCC 

ultimately figured out that he was the real beneficiary of the loans. He 

points to Mr. Moore’s testimony that the proceeds of the loans could be 

traced from the loan file. Id. at 370-71. But Mr. Moore also testified that 

the loans were made to trick OCC examiners into thinking that Mr. 

Wesberry’s account was not overdrawn and that his loans were current. The 

OCC discovered the loans only after it obtained an overdraft report 

reflecting the overnight disappearance of some of the overdrafts on 

Mr. Wesberry’s accounts. 

 The test for bank fraud is not whether OCC bank examiners were 

ultimately deceived by the fraudulent scheme, but whether Mr. Wesberry 

executed or attempted to execute a scheme to conceal his debt through the 

use of nominee loans. See United States v. Doke, 171 F.3d 240, 245 (5th 

Cir. 1999) (holding that the fact that a bank officer could have discovered 

 

1

 Mr. Moore allowed Mr. Wesberry to overdraft his First National 

checking account by $1.6 million. 
7 

the principal’s involvement in a nominee loan did not require a reasonable 

jury to conclude that the principal and nominee had not attempted to 

conceal that involvement). The evidence was sufficient to satisfy that test. 

 Finally, Mr. Wesberry argues that there was insufficient evidence to 

hold him responsible for the nominee loan underlying Count 4. That 

nominee loan was made to Mr. John Cundiff. Mr. Cundiff testified that he 

had not met Mr. Wesberry until after obtaining the loan. Mr. Wesberry 

testified that he did not know Mr. Cundiff and did not direct him to obtain 

a loan from First National. 

 The nominee loan to Mr. Cundiff formed part of the scheme or 

artifice designed to defraud First National. Mr. Cundiff learned of the 

possibility of a loan through his contact with an individual, Chris Johnson, 

whom Mr. Wesberry had recruited. Mr. Moore testified that Mr. Cundiff 

said he had come for a loan at Mr. Wesberry’s request.2

 Most of the funds 

from Mr. Cundiff’s loan were credited to the account of a company owned 

by Mr. Wesberry. Thus, the jury could reasonably infer Mr. Wesberry’s 

 

2

 Mr. Moore’s testimony on this point was equivocal. Mr. Moore 

initially testified that he had “guess[ed]” that Mr. Wesberry sent Mr. 

Cundiff to him. Appellant’s App’x Vol. 1, at 299-300. Later, Mr. Moore 

stated that Mr. Cundiff had “said he was coming in in response to Mr. 

Wesberry’s request.” Id. Vol. 2, at 369. But immediately thereafter Mr. 

Moore admitted that he could not recall specifically what Mr. Cundiff had 

said. Id.
8 

participation in the nominee loan to Mr. Cundiff. In these circumstances, 

we conclude that the evidence was sufficient for the conviction on Count 4. 

III. The district court did not err in refusing to give an advice-ofcounsel jury instruction. 

 Mr. Wesberry requested the following advice-of-counsel instruction: 

 One element that the government must prove beyond a 

reasonable doubt is that the defendant had the unlawful intent 

to Commit Bank Fraud and/or Conspire to Commit Bank Fraud. 

Evidence that the defendant in good faith followed the advice 

of counsel would be inconsistent with such an unlawful intent. 

Unlawful intent has not been proved if the defendant, before 

acting, made full disclosure of all material facts to an attorney, 

received the attorney’s advice as to the specific course of 

conduct that was followed, and reasonably relied on that advice 

in good faith. 

Appellant’s App’x Vol. 3, at 900. According to Mr. Wesberry, this 

instruction should have been given. We reject this challenge. 

 “A defendant is entitled to an instruction as to any recognized 

defense for which there exists evidence sufficient for a reasonable jury to 

find in [his] favor.” United States v. Rampton, 762 F.3d 1152, 1156 (10th 

Cir. 2014) (internal quotation marks omitted). Ordinarily, we review for 

abuse of discretion a district court’s refusal to give a requested 

theory-of-defense instruction. Id. But when the district court concludes 

that there was insufficient evidence to justify the instruction, our review is 

de novo. Id. 

 “In the Tenth Circuit, to establish a good faith reliance on counsel 

defense, the defendant must show (1) a request for advice of counsel on the 
9 

legality of a proposed action, (2) full disclosure of the relevant facts to 

counsel, (3) receipt of advice from counsel that the action to be taken will 

be legal, and (4) reliance in good faith on counsel’s advice.” United States 

v. Wenger, 427 F.3d 840, 853 (10th Cir. 2005) (internal quotation marks 

omitted). The district court declined to give Mr. Wesberry’s proposed 

instruction because it regarded the evidence insufficient on the third 

element (advice from his counsel that use of the nominee loans would be 

legal). 

 Mr. Wesberry argues that he presented sufficient evidence 

concerning his counsel’s advice. The attorney involved did not testify, but 

Mr. Wesberry points to parts of his own testimony: 

Q. Did you think there was anything wrong [with] this 

 [nominee] loan? 

A. No. 

Q. Did you consult anybody about it? 

A. . . . [W]hen [Mr. Moore] first asked me about the [nominee] 

loans and I’d went and talked to [accountant] Robert Clark 

about it, and then we called an attorney from his office and put 

him on a speaker phone. 

Q. And who was the attorney? 

A. Steve Tolson. 

Q. And what did you tell Mr. Tolson that you were going to 

 do . . . [?] 

A. I told Mr. Tolson my banker wanted me to bring in some 

friends and do some [nominee] loans, and I just wanted to 

make sure that everybody was covered in this deal and 
10 

. . . I didn’t know if it would be right or wrong. I was 

trying to get out of them. 

Appellant’s App’x Vol. 3, at 635. 

Q. Now, you indicated . . . earlier, that when [Mr. Moore] 

made this proposal, you went back and you talked to your 

attorney; is that right? 

A. Yes, sir. 

Q. And when you talked to your attorney, did you reveal 

everything that you’ve told . . . the jury about what he 

said on this? 

A. . . . I told him everything I knew at that point. 

Q. Okay. And what advice did your attorney give you? 

 MR. WRIGHT [Government’s Counsel]: Objection. 

 Hearsay. 

 THE COURT: Exception? 

MR. GOTCHER [Mr. Wesberry’s Counsel]: I don’t know 

if there is one on this, Your Honor, so I’ll go to the next 

question. 

 THE COURT: I’ll sustain the objection. 

Q. (BY MR. GOTCHER) Based on his advice, did you then 

 go and do the nominee loans? 

A. Yes, sir. 

Q. And you relied upon his advice to do that? 

A. Yes, sir. 

Id. at 652-53. 

Q. Did you think there was anything wrong with these 

nominee loans? 

A. No, sir. 

Id. at 661. 
11 

 Mr. Wesberry’s testimony was insufficient to demonstrate that his 

attorney actually advised him the use of the nominee loans was legal. At 

most, it showed that Mr. Wesberry had relied on advice from his counsel in 

agreeing to the loans. The problem for Mr. Wesberry is that he never said 

what his attorney had advised. Under these circumstances, the district 

court did not err in refusing to give an advice-of-counsel instruction.3

 

IV. We remand to the district court for resentencing.

 In calculating Mr. Wesberry’s guideline range, the district court 

enhanced the offense level by four levels for “jeopardiz[ing] the safety and 

soundness of a financial institution.” U.S.S.G. § 2B1.1(b)(16)(B)(i) (2014). 

Mr. Wesberry challenges this ruling on the ground that “the bank was 

doomed from the overdraft and [other, non-nominee loans] that [Mr.] 

Moore [had] approved.” Appellant’s Opening Br. at 26. According to Mr. 

Wesberry, “the nominee loans . . . did not affect the viability of the bank” 

 

3

 Had the advice-of-counsel instruction been given, the government 

would likely have sought to call Mr. Tolson to explore the actual advice he 

gave Mr. Wesberry. Mr. Wesberry suggests that the district court refused 

the instruction because the court was uncomfortable with an email from 

Mr. Tolson that might have been presented if he had been called as a 

rebuttal witness. In the email, Mr. Tolson stated that he had formerly 

worked in the same law firm with the district judge and that he was going 

to refer the Wesberrys to that firm. But in a colloquy with the court, 

Mr. Wesberry’s attorney agreed that the portions of the email referring to 

the district court judge could be redacted. Appellant’s App’x Vol. 2, at 

558. We fail to discern any reversible error here, particularly because our 

de novo review convinces us that the district court properly refused the 

instruction based on insufficient evidence. 
12 

because they “did not worsen the bank’s position.” Id. at 27-28. We agree 

and remand for resentencing on this basis. 

 In addressing Mr. Wesberry’s argument, we engage in de novo 

review of the district court’s legal conclusions and clear-error review of 

the findings. United States v. Evans, 782 F.3d 1115, 1117 (10th Cir.) 

(internal quotation marks omitted), cert. denied, __ U.S. __, 136 S. Ct. 171 

(2015). “We review de novo the application of a Guidelines enhancement 

to the extent the defendant asks us to interpret the Guidelines or hold that 

the facts found by the district court are insufficient as a matter of law to 

warrant an enhancement.” United States v. Craig, 808 F.3d 1249, 1259 

(10th Cir. 2015) (internal quotation marks omitted). 

 Section 2B1.1(b)(16)(B)(i) provides a four-level increase if “the 

offense . . . substantially jeopardized the safety and soundness of a 

financial institution. . . .” The commentary to § 2B1.1 provides a nonexhaustive list of factors for the court to consider in determining whether 

the safety and soundness of a financial institution was substantially 

jeopardized, including whether the financial institution had become 

insolvent. U.S.S.G. § 2B1.1, cmt. n. 13(A)(i) (2014). 

 An OCC examiner testified that earlier loans to Mr. Wesberry and his 

companies—loans that were not nominee loans and were not charged in the 

indictment—caused First National to fail. Appellant’s App’x Vol. 1, at 

225-26. The OCC examiner also testified that use of the nominee loans did 
13 

not affect the viability of First National because the bank would have 

failed from the prior loans to Mr. Wesberry and his companies: 

Q. . . . Those four [nominee] loans did not affect the 

viability, or the continuing existence of the bank in and 

of themselves, did [they]? 

A. Those four loans, in and of [themselves] did not better 

the bank’s position, no, [they] did not. 

Q. Or worsen it? 

A. [They] did not make it worse, either, no, [they] did not. 

Q. Okay. Basically it was a sum zero type deal. . . . [Mr.] 

Moore was doing the loans, but it didn’t really matter, 

did it? 

A. The amount that was outgoing as far as combining for 

legal lending limit purposes was still the same, and he – 

and I think that was his goal. And, no, he did not alter 

that at all. 

Id. at 227-28. 

 The sentencing enhancement under § 2B1.1(b)(16)(B)(i) is 

appropriate in circumstances where “as a result of the offense, the safety 

and soundness of a financial institution was substantially jeopardized.” 

U.S.S.G. § 2B1.1, cmt. n. 13(A) (emphasis added). The offense charged 

here involved the use of nominee loans to defraud First National. The 

government has not shown that these nominee loans substantially 

jeopardized the safety and soundness of First National, which failed from 

the excessive loans it made to Mr. Wesberry rather than the scheme to 

conceal these loans. 
14 

 Nor does the relevant conduct cited by the government, which 

involves other nominee loans not charged in the indictment, change this 

analysis. The government fails to show that the nominee loans, rather than 

prior loans to Mr. Wesberry and his companies, jeopardized the safety and 

soundness of First National. Accordingly, the sentencing enhancement was 

not supported by the evidence. 

V. Disposition 

 We affirm Mr. Wesberry’s conviction, direct the district court to 

vacate the sentence, and remand to the district court for resentencing. 

 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge