[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-16821

Non-Argument Calendar

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D.C. Docket No. 2:14-cr-00426-RWG-TFM-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

KENNON W. WHALEY, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Alabama

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(May 4, 2018)

Before TJOFLAT, WILLIAM PRYOR and NEWSOM, Circuit Judges.

PER CURIAM: 

Kennon Whaley appeals his two convictions for concealing property of the 

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estate of his company as it operated under a Chapter 11 plan of reorganization and 

his sentence of 72 months of imprisonment. 18 U.S.C. § 152(1). Whaley 

challenges the denial of his motion for a judgment of acquittal and the calculation 

of his amount of loss. Whaley also argues, for the first time on appeal, that the 

district court improperly limited his closing summation and failed to instruct the 

jury about materiality. We affirm.

Whaley argues that the district court erred in denying his motion for a 

judgment of acquittal on the ground that the government was required to prove the 

essential element of materiality, but we need not decide whether materiality is an 

element of bankruptcy fraud to affirm the district court. Even if we assume that 

materiality is an element of the crime of “knowingly and fraudulently conceal[ing]

. . . from creditors or the United States Trustee, any property belonging to the 

estate of a debtor,” id., the government proved that Whaley’s concealment of 

insurance proceeds was material to Teresa Jacobs, the trustee who controlled the 

property of Whaley’s bankrupt company, Southeastern Stud. Whaley, the debtorin-possession, deposited into a non-debtor-in-possession bank account two checks 

that CNA Continental Casualty Company had made payable to Southeastern Stud

without notifying Jacobs of the existence of the bank account or the insurance 

proceeds. Jacobs testified that, had she known “money came into the estate that 

was not disclosed” and “was not deposited into . . . a DIP account,” she would 

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have “move[d] to dismiss the case, perhaps with prejudice.” Whaley’s concealment 

was material because, had Jacobs known the information he had withheld, she 

would have sought to end the bankruptcy case instead of allowing Whaley’s 

company to enjoy the benefits and protections of a reorganization. The district 

court did not err by denying Whaley’s motion for an acquittal.

Insofar as Whaley argues that the government also had to prove that the 

insurance proceeds were material as compared to the value of the Southeastern 

Stud estate, we disagree. We must “presume that . . . [Congress] says in a statute 

what it means and means in a statute what it says there.” Connecticut Nat’l Bank v. 

Germain, 503 U.S. 249, 253–54 (1992); United States v. Pirela Pirela, 809 F.3d 

1195, 1199 (11th Cir. 2015). By its terms, section 152(1) prohibits the concealment 

of “any property belonging to the estate of the debtor.” 18 U.S.C. § 152(1)

(emphasis added). And we have held that “[t]he value of the concealed property is 

not an essential element of 18 U.S.C. § 152.” United States v. Ward, 197 F.3d 

1076, 1083 (11th Cir. 1999). Our reading also is consistent with the decision of 

Congress to make the value of property relevant to liability in section 152(5), 

which punishes “[a] person who knowingly and fraudulently receives any material 

amount of property from a debtor after the filing of a case under title 11 . . . .” 18 

U.S.C. § 152(5) (emphasis added). “Where Congress includes particular language 

in one section of a statute but omits it in another section of the same Act, it is 

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generally presumed that Congress acts intentionally and purposely in the disparate 

inclusion or exclusion.” Rodriguez v. United States, 480 U.S. 522, 525 (1987) 

(quoting Russello v. United States, 464 U.S. 16, 23 (1983)) (internal quotation 

marks omitted and alteration adopted). We infer from the omission of the word 

“material” from section 152(1) that the government need only prove that the 

defendant concealed “any property” that belonged to the bankruptcy estate. 

Whaley argues, for the first time, that he was “expressly prohibited . . . from 

arguing materiality to the jury,” but the record refutes his argument. Whaley

argued throughout his trial that the property he concealed was immaterial to the 

Southeastern Stud estate. He argued in his opening statement that his concealment 

of the insurance proceeds “had virtually no impact on the creditors of Southeastern 

Stud.” During closing arguments, Whaley argued that the proceeds “would have 

been eaten up before [they] ever got to the creditors” and “there was such a gap 

there, [they] probably wouldn’t have mattered.” Whaley identifies no argument 

that he should have been, yet was unable, to make to the jury.

Whaley also argues, for the first time, that “the jury [was not] properly 

instructed on materiality as an element of bankruptcy fraud,” but Whaley fails to 

identify where the district court refused to give a jury instruction that he requested. 

And Whaley waived any objection that he might have had to the jury instruction 

the district court gave. “[W]hen a party agrees with a court’s proposed instructions, 

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the doctrine of invited error applies, meaning that review is waived even if plain 

error would result.” United States v. Frank, 599 F.3d 1221, 1240 (11th Cir. 2010). 

The district court asked Whaley if he had “any comments or objections” to using 

the instruction proposed by the government to which had been “added . . . a little 

sliver out of [his proposed instruction on his defense] theory,” and Whaley 

responded, “I’m good with this one.” Under the doctrine of invited error, Whaley 

waived his right to challenge the instruction given by the district court.

The district court also did not clearly err by finding that the loss amount 

equaled the amount of the insurance proceeds that Whaley concealed. The 

guidelines instruct the sentencing court to use “the greater of actual loss or

intended loss,” United States Sentencing Guidelines Manual § 2B1.1 cmt. n.3(A) 

(emphasis added), and the district court found that the amount of the insurance 

proceeds represented both actual loss and intended loss. We can consider intended 

loss as the relevant measure of loss because the district court expressly found that 

Whaley “purposely sought to inflict $271,813.84 in harm on his creditors.” See id.

§ 2B1.1 cmt. n.3(A)(ii). Whaley knew that the insurance proceeds were part of the 

Southeastern Stud estate, never disclosed their existence to the trustee or turned the 

proceeds over to the bankruptcy court, and used at least some of the proceeds to 

pay gambling debts. The district court reasonably inferred from Whaley’s misuse 

of the insurance proceeds that he intended to deny the creditors of the Southeastern 

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Stud estate access to those proceeds. See United States v. Hernandez, 160 F.3d 

661, 666–67 (11th Cir. 1998) (affirming the inclusion in the amount of loss the 

proceeds from the trustee’s auction sale of two vehicles that a debtor-in-possession 

had concealed). The district court did not err by using the $271,813.84 in insurance 

proceeds that Whaley concealed as the amount of loss. 

We AFFIRM Whaley’s conviction and sentence.

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