STATE OF IOWA, Plaintiff-Appellee, vs. ROD WOLFORD SR., Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-579 / 06-0691
Filed October 24, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ROD WOLFORD SR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Michael D. Huppert,
Judge.
Rod Wolford Sr. appeals his convictions for ongoing criminal conduct, firstdegree theft, securities fraud, transacting business as an unregistered
broker/dealer, and the sale of unregistered securities. AFFIRMED.
John Roehrick and Kim J. Rogers Smith of Roehrick Law Firm, P.C., Des
Moines, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney
General, Denise A. Timmins, Assistant Attorney General, John P. Sarcone,
County Attorney, and George Karnas, Assistant County Attorney, for appellee.
Heard by Mahan, P.J., and Miller and Eisenhauer, JJ. Vaitheswaran, J.,
takes no part.
2
MAHAN, P.J.
Rod Wolford Sr. appeals his convictions for ongoing criminal conduct, firstdegree theft, securities fraud, transacting business as an unregistered
broker/dealer, and the sale of unregistered securities. We affirm.
I. Background Facts and Prior Proceedings
Rod Wolford, along with his son and daughter, operated the Wolford
Corporation and the Wolford Group (referred to collectively herein as the
“Wolford Company”). Rod was the person in charge of the Wolford Company. At
first, his business plan was to buy homes from distressed buyers and then sell
the houses at a higher price. Rod initially bought the houses on contract, but
then began buying houses pursuant to real estate lease option agreements in
which a trust was created in the name of the seller with the Wolford Company as
trustee. Typically, he would sell a house to a buyer on contract with a balloon
payment due in twelve months. The buyer would make monthly payments to the
Wolford Company, and the Wolford Company would make the monthly payments
on the preexisting mortgage. The buyer would then find a lender before the
balloon payment was due. When the loan was approved, the lender would issue
checks to the Wolford Company to pay off the balloon payment, and in turn, pay
off the preexisting mortgage. In 2002 Rod decided not to pay off the preexisting
mortgages on some properties. Instead, he used the money for other purposes,
but continued to make the monthly payments on the preexisting mortgages so as
to avoid detection.
Even though he had entered into an agreement with the Iowa Securities
Bureau in 2000 whereby he agreed that he would no longer solicit public funds
3
for investment, Rod continued to solicit investors for the Wolford Company. He
promised investors a fifteen percent return payable in monthly installments and
also told them their investments were secured by an interest in specific
properties. However, Rod did not record the investors’ interests in the property.
By the end of the summer of 2003, the Wolford Company had been forced into
receivership.
When the extent of his dealings became apparent, Rod was
charged by trial information with seventeen counts of criminal conduct, including
theft, securities fraud, transacting business as an unregistered broker/dealer,
sale of unregistered securities, and ongoing criminal conduct.
The case
proceeded to trial, and a jury found Rod guilty on all counts. The district court
sentenced Rod to a term of incarceration totaling seventy-five years.
Rod appeals his convictions. He argues: (1) the district court failed to
instruct the jury on the identity of the victims of some of the theft charges, (2) the
district court erred in instructing the jury on the elements of securities fraud,
(3) the district court erred in rejecting his proposed instructions regarding the
timing of the deception, (4) the district court erred in overruling his motion for
judgment of acquittal because there was insufficient evidence of theft by
deception, (5) the district court erred because it did not tailor the intent
instructions to each individual charge, and (6) the district court erred in instructing
the jury on theft as it related to the theft of the investors’ funds and in including
the allegation that the defendant aided and abetted these thefts.
II. Standard of Review
Alleged errors in jury instructions are reviewed for corrections of errors at
law. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996).
A district court is
4
required to instruct the jury on the law as it applies to the material issues in the
case. State v. Stallings, 541 N.W.2d 855, 857 (Iowa 1995). The court may
phrase the instructions “in its own words as long as the instructions given fully
and fairly advise the jury of the issues they are to decide and the law which is
applicable.” State v. Rupp, 282 N.W.2d 125, 126 (Iowa 1979). Error in giving a
jury instruction does not merit reversal unless it results in prejudice to the
defendant. Kellogg, 542 N.W.2d at 516. Issues of statutory interpretation are
also reviewed for errors at law. State v. Cartee, 577 N.W.2d 649, 652 (Iowa
1998).
We review his challenges to the sufficiency of the evidence for correction
of errors of law.
See State v. Corsi, 686 N.W.2d 215, 218 (Iowa 2004).
“‘Evidence is substantial if it could convince a rational jury of the defendant’s guilt
beyond a reasonable doubt.’” Id. (citation omitted). “In assessing the sufficiency
of the evidence, we consider all the evidence in the record, but we view the
record in the light most favorable to the State.” Id.
III. Merits
A. Failure to Identity the Victim for the Crimes of Theft by Deception
Rod contends the following jury instruction pertaining to the charge of theft
by deception was incorrect because it did not identify, by name, the victim of the
deception. 1
INSTRUCTION NO. 23
In Count II, the state must prove all of the following elements
of Theft:
1
This same jury instruction, except for changes to the month of refinancing and the
address of the property, was used for the five similar counts of theft by deception. Our
discussion of this instruction will also control the five other counts of theft by deception.
5
1. During November of 2002, the defendant or someone he
aided and abetted represented to others that liens and mortgages
on property located at 1905 E. 32nd Court in Des Moines, Iowa
would be satisfied.
2. The defendant or someone he aided and abetted
knowingly deceived others in one or more of the following ways:
a. By creating or confirming a belief or impression in another
as to the existence or nonexistence of a fact or condition
which was false and which the defendant or someone he
aided and abetted did not believe to be true; or
b. By failing to correct a false belief or impression as to the
existence or nonexistence of a fact or condition which the
defendant or someone he aided and abetted had previously
had created or confirmed; or
c. By promising payment or other performance which the
defendant or the person he aided and abetted did not intend
to perform, or knew he or the person he aided and abetted
would not be able to perform. Failure to perform, standing
alone, is not evidence that the defendant did not intend to
perform.
3. The defendant or someone he aided or abetted obtained
the transfer of possession, control, ownership or the beneficial use
of the funds which were to have been used to satisfy the liens and
mortgages against 1905 E. 32nd Court by the deception.
If the state has proved each element, the defendant
committed Theft. If the state has failed to prove any one of the
elements, the defendant is not guilty as to Count II.
Rod contends this instruction is erroneous because it is impossible to
have a specific intent to deceive “the world.” He claims that, by instructing in this
manner, “the Court permitted the State to establish deception without the
necessity of showing that there was a victim to whom the representation was
made.”
In essence, he contends theft by deception requires proof that the
victim—the one who lost ownership of the “funds” because of the deception—
was the one to whom the representation was made.
The State counters that the statute does not mandate that the victim be
identified nor does it specify that the “deception” must be directed to the victim of
the theft.
6
First, we note that the identity of the victim is not a material element of the
offense of theft by deception. At most, Iowa Code section 714.1 (2003) indicates
that the property must be taken from “another.”
Other states which have
addressed the matter as to marshalling identity have found that identity of the
victim is not a material element of the offense of theft. See State v. Woodward,
66 P.3d 556, 559 (Or. App. 2003) (holding the “identity of the victim is not a
material element of the crime of theft”); State v. McReynolds, 71 P.3d 663, 675
(Wash. Ct. App. 2003) (“It has long been the rule in Washington that the identity
of the property’s owner is not an element of crimes involving larceny or theft.”);
State v. Emmons, 386 N.E.2d 838, 841 (Ohio App. 1978) (indicating all that is
necessary in a receiving stolen property case with respect to the element of
“property of another” is evidence of a wrongful taking from the possession of
another). Although we find it is the better practice to indicate the name of the
victim in the jury instruction, we find no error in this case because the victim of
the deception was clearly the party from whom the “funds” were obtained.
Second, we find that the statutory crime of theft by deception does not
require the State to prove the deception was directed to the owner of the
property. Iowa Code section 714.1(3) states that a person commits theft when
he or she “[o]btains the labor or services of another, or a transfer of possession,
control, or ownership of the property of another, or the beneficial use of property
of another, by deception.” (Emphasis added.) This section does not indicate that
the deception must be directly aimed at the owner of the property taken. Section
702.9, which defines the term “deception,” also does not contain any language
directly linking the actual deception to the owner of the property. The thrust of
7
section 714.1(3) is that an individual obtains property through deception. The
statute does not specify that the individual’s actions had to be aimed directly at
the ultimate victim of the deception.
This coincides with Iowa case law interpreting of the crime of theft by
deception. Our supreme court has indicated that the crime of theft by deception
is different than other types of theft because “[t]heft by deception is meant as a
catch-all crime to encompass the full and ever changing varieties of deception.”
State v. Hogrefe, 557 N.W.2d 871, 878 (Iowa 1996). As explained below, Rod’s
plan was to use his close relationship with the lender’s settlement agent to
ultimately deceive the lender.
Rod’s complex and pervasive method of
transferring funds from unsuspecting victims falls squarely within the goal of the
statute—“to encompass the full and ever changing varieties of deception.” Id.
Accordingly, we find the crime of theft by deception only requires proof of the
deception, not proof that the deception was made directly to the victim. We find
no error here.
B. Securities Fraud under State v. Tyler
Rod contends the district court erred when it did not instruct the jury that
there must have been a specific intent to defraud in order to find him guilty of
securities fraud under Iowa Code section 502.401. The basis for Rod’s claim
that the district court should have included specific intent language is our
supreme court’s holding in State v. Tyler, 512 N.W.2d 552, 554 (Iowa 1994). In
Tyler, the supreme court stated:
The elements of a securities fraud under Iowa Code sections
502.401 and 502.605 (1991) are:
8
(1) The defendant sold or offered to sell a security;
(2) The defendant willfully and knowingly either
(a) Made an untrue statement of material fact, or
(b) Omitted a nonmisleading statement of material fact and, under
the circumstances, the omission rendered defendant's statements
misleading.
(3) The defendant did so with a specific intent to defraud.
Tyler, 512 N.W.2d at 554 (emphasis added). As noted by our supreme court, the
basis for the elements of the crime of securities fraud was the 1991 version of
Iowa Code section 502.605. At that time, section 502.605 stated:
1. Any person who willfully and knowingly violates any
provision of this chapter, or any rule or order under this chapter,
shall be guilty of a class “D” felony.
(Emphasis added.) Iowa Code chapter 502 underwent significant revisions after
the Tyler decision. In 2001 the legislature specifically amended section 502.605
so as to eliminate the requirement that a person must “knowingly” violate section
502.401. See 2001 Iowa Acts ch. 118, §13. Therefore, at the time these crimes
were allegedly committed, section 502.605 only required proof that the defendant
“willfully” violated section 502.401.
When crafting the jury instructions for this case, the trial court followed the
version of the Iowa Code in force when Rod solicited the investments and only
required proof that Rod willfully violated section 502.401. In doing so, the court
used the language from section 502.401 to instruct the jury in the following
manner:
In Count VII, the state must prove all of the following
elements of Securities Fraud:
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1. On or about January 16, 2003, the defendant sold or
offered to sell a security to James Hensley.
2. In connection with the sale or offer to sell, the defendant
willfully either:
a. Directly or indirectly made an untrue statement of
material fact to James Hensley or omitted to state a material
fact to James Hensley necessary in order to make the
statement made, in light of the circumstances under which
they were made, not misleading; or
b. Directly or indirectly engaged in an act, practice, or
course of business that operated to defraud or deceive
James Hensley.
If the State has proved all of these elements, the defendant
is guilty of Securities Fraud. . . .
Upon our review of the court’s instruction and the controlling statutes, we
find the district court properly instructed the jury on the elements of the crime of
securities fraud under sections 502.401 and 502.605.
In light of the recent
decision in State v. Keeton, 710 N.W.2d 531, 533-34 (Iowa 2006), whereby the
supreme court held that attaching a label of specific intent or general intent is
secondary to the State’s burden to prove that the defendant possessed the mens
rea required by the statute, we find the district court did not err when it did not
assign a label of specific intent or general intent in this case. The crucial portion
of this statute is the State’s burden to prove that Rod either (1) willfully engaged
in an act, practice, or course of business to defraud or deceive James Hensley in
connection with the sale of securities or (2) willfully made an untrue statement of
material fact to James Hensley or omitted to state a material fact to James
Hensley in connection with the sale of securities. The jury instruction adequately
addressed the elements set forth in sections 502.401 and 502.605. We find no
error here.
10
C. Failure to Include Requested Instruction
After the close of the evidence, Rod requested that the court instruct the
jury in the following manner:
DEFENDANT’S REQUESTED INSTRUCTION NO. 32
With respect to Element No.2(a) of (deception), you are
instructed that “knowingly creating or confirming another’s belief or
impression as to the existence of a fact or condition which is false
and which the actor does not believe to be true” means that the
representation was false and untrue when it was made or
represented. It is not sufficient that it may now be untrue or that it
became false at a time after it was represented as being true. It
must have been false at the time it was made.
DEFENDANT’S REQUESTED INSTRUCTION NO. 55
With respect to requirement of “knowingly deceived . . . in one or
more of the following ways” as used in Instructions . . . . and the
requirement of “made an untrue statement of material fact” as used
in Instructions [on securities fraud]. . . , means that the fact or
condition which formed the basis of the representation was false
and untrue when it was represented or made to the party who is
alleged to have been deceived. It is not sufficient that it may now
be untrue or that it became false at a time after it was represented
as being true. It must have been false at the time it was made.
Additionally, the defendant must have believed the representation
to be false, which refers to whether, under the facts and
circumstances as they existed at the time the representations were
made, the defendant believed them to be untrue when made.
These instructions were not given to the jury by the court. Rod claims that denial
of either requested instruction constituted error because the jury needed to be
informed that the deception must have been false when made and not later. The
State contends that the substance of this issue was properly conveyed in the
following instruction given to the jury:
To act with a “specific intent” or “knowingly” means not only being
aware of doing an act and doing it voluntarily, but in addition, doing
it with a specific purpose in mind.
11
Because determining the specific intent of a person requires you to
decide what he was thinking when an act was done, it is seldom
capable of direct proof. Therefore, you should consider the facts
and circumstances surrounding the act to determine the person’s
specific intent. You may, but are not required to, conclude a person
intends the natural results of his acts.
(Emphasis added.)
This instruction informs the jury that to act knowingly meant that the act
was done with a specific purpose in mind. This instruction requires the jury to
find the defendant had the specific intent to deceive when the act was done. The
defendant’s proposed instructions would have added nothing new to the
instructions and would only have served to emphasize the already existing
language. We find that the court’s refusal to submit Rod’s requested instructions
was not error because the substance of these instructions was adequately
incorporated in the court’s own instructions. 2 See State v. Musser, 721 N.W.2d
758, 762 (Iowa 2006) (“A trial court need not give a requested instruction,
however, if the subject is already covered in the court’s own instructions.”); State
v. Carpenter, 334 N.W.2d 137, 141 (Iowa 1983) (“The court was not obliged to
express this concept in defendant’s words so long as it was adequately conveyed
to the jury.”).
D. Insufficient Evidence of Deception
Rod contends the district court erred in overruling his motion for judgment
of acquittal because there was insufficient evidence of any representations which
2
As noted above, the jury was not informed that the specific intent instruction applied to
the securities fraud charges. However, we find Rod has failed to show why these
instructions are an incorrect statement of the law in relation to the securities fraud
charges, which do not require the State to prove that Rod acted “knowingly.”
12
could constitute deception at the time any funds were transferred from the
lending companies.
Rod was charged with using deception to obtain “funds” which were to
have been used to satisfy liens and mortgages. These funds came from lenders
who were loaning the funds to buyers so that they could purchase a home form
the Wolford Company. Rod claims there is no evidence that he “or someone for
him made a promise or representation which induced the owner of the funds to
transfer the ownership of the mortgaged funds.”
Stated another way, Rod
contends there was no evidence to show that he or any of his workers made the
false assertion that the mortgages would be paid in order to influence the lending
companies to transfer the funds.
As Rod points out, there is no direct evidence of a statement between the
Wolford Company and a buyer’s lender whereby the Wolford Company told the
lending company to send funds so the Wolford Company could satisfy the
existing mortgages on the property. However, because of the close relationship
between Rod and the owner of the mortgage broker/closing company and the
prior dealings and transactions between the two, such direct statements were not
necessary to facilitate payments from the lending companies. See Iowa R. App.
P. 6.14(6)(p) (“Direct and circumstantial evidence are equally probative.”).
The record reveals that after a buyer purchased a home on contract with
the Wolford Company, Rod, or one of his employees would direct the potential
buyers to David Winterfeld’s mortgage broker business, Metropolitan Mortgage.
Metropolitan Mortgage would find a lender willing to lend funds to the buyer so
the buyer could purchase the home outright. The lender would then hire a title
13
company to do the title work and a closing/settlement company to handle the
loan closing and the disbursement of the funds from the loan. On virtually all
loans brokered by Metropolitan Mortgage for a Wolford Company customer, the
closing/settlement company used by the lenders was Lenders Management,
another company owned and operated by Winterfeld.
There was a very close working relationship between the Wolford
Company, Metropolitan Mortgage, and Lenders Management. Employees from
Metrolpolitan Mortgage and employees from Lenders Management had offices
within the Wolford Company’s office building. During the loan approval process,
Lender’s Management would contact someone from the Wolford Company to
determine the amount of the preexisting mortgage on the property. Someone
from the Wolford Company would send Lenders Management a letter describing
the funds necessary to satisfy the contract and pre-existing mortgages. Once
Lenders Management received the funds from the lender, it would disburse those
funds to the appropriate parties. In doing so, Lenders Management would send
the Wolford Company a check so that it could pay off the preexisting mortgages
on the property. Once the Wolford Company received the check, it would pay off
the preexisting mortgages on the properties so the new lender would have a first
lien on the property.
This process was repeated numerous times prior to, during, and after the
time frame of the six transactions at issue in this case. 3 However, for the six
transactions involved in this case, Rod did not pay off the preexisting mortgages.
3
The six transactions at issue in this case occurred between April 2002 and March
2003.
14
Instead, Rod used the funds for other purposes.
To avoid detection, Rod
continued to pay the amounts due on the preexisting mortgages. In the spring of
2003, Winterfeld discovered that some of the pre-existing mortgages had not
been paid off. In order to protect himself, Winterfeld asked Rod for a payoff
statement indicating that he had properly paid off the preexisting mortgages.
Rod complied and sent Winterfeld phony letters indicating that he had paid off
these preexisting mortgages soon after the funds were originally transferred to
the Wolford Company.
In light of this ongoing business relationship, we find there was ample
circumstantial evidence to prove that Rod induced Lenders Management, as an
agent working for the individual lenders, to transfer funds to the Wolford
Company under the false belief that Rod would use these funds to pay off the
preexisting mortgages.
The numerous prior transactions between Rod and
Winterfeld established that the Wolford Company would use the funds from the
lender to pay off the preexisting mortgages on the properties. At some point,
Rod decided not to pay off certain mortgages. In doing so, Rod did not inform
Lenders Management or any of the lenders that he was not going to disburse the
funds earmarked for the preexisting mortgages.
Wolford’s son, Rodney, testified as a witness for the State. 4
Rodney
testified that he had conversations with Rod about these inappropriate
transactions starting in April of 2002. Rod told Rodney that he was not paying off
4
Rodney is not a party to this appeal. Prior to this trial, Rodney entered into a plea
agreement with the State in which he pled guilty to three charges in exchange for his
testimony against his father.
15
the preexisting mortgages because he “had to do this for now to keep the
business going.”
We find the foregoing is clear evidence of deception. Rod’s past actions
led Lenders Management, as an agent for the lenders, to believe that he would
use the funds to pay off the preexisting mortgages.
Rod gave Lenders
Management no reason to know that he would not pay off the preexisting
mortgages for these transactions.
In doing so, Rod failed to correct a false
impression which he had previously created or confirmed with Lenders
Management. See Iowa Code § 702.9(2). We find there was sufficient evidence
of deception on all six counts.
E. Jury Instructions on Specific Intent and General Intent
Rod contends the trial court erred when it gave instructions on general
intent and specific intent but then did not tailor each instruction to the marshalling
instruction to which it applied.
Rod claims that when multiple offenses are
charged, the definition of the terms, if not applicable to all offenses, must refer to
the instructions to which they apply. As stated in his appellate brief, “It is simply
too much to ask that a jury, by the use of a word in a marshalling instruction, can
relate that back to the definition and understand what it means. It will create
confusion.”
We disagree. We find the instructions provided the jury with appropriate
guidance as to when to apply the “specific intent” definition.
In instruction
nineteen, the court defined the term “specific intent.” In the very next instruction,
the jury was informed that “The crimes of Theft which have been charged require
a specific intent.” The jury could easily apply this definition of specific intent to
16
the ten counts of first-degree theft that were clearly identified in the jury
instructions. The jury was free to apply the general criminal intent instruction to
the remaining charges. 5 We find no error here.
F. Failing to Strike the Word “Payment” from Four Jury Instructions
Rod claims there was insufficient evidence to include the word “payment”
in the jury instructions on the four counts of theft by deception from his investors.
The State contends there was sufficient evidence to support the instructions.
The jury was instructed in the following manner for each charge of the four
counts of theft from his investors:
[T]he State must prove all of the following elements of theft:
1. One or about [a specific date or span of dates], the
defendant promised to secure [the investor’s] investment by filing a
mortgage.
2. The defendant knowingly deceived [the investor] in one or
more of the following ways:
a. By creating or confirming a belief or impression held by
[the investor] as to the existence or nonexistence of a fact or
condition which was false and which the defendant or
someone he aided and abetted did not believe to be true; or
b. By failing to correct a false belief or impression held by
[the investor] as to the existence or nonexistence of a fact or
a condition which the defendant or someone he aided and
abetted previously had created or confirmed; or
c. By promising payment or other performance to [the
investor] which the defendant or the person he aided and
abetted did not intend to perform, or knew he or the person
he aided and abetted would not be able to perform. Failure
to perform, standing alone, is not evidence that the
defendant did not intend to perform.
5
Rod does not present any argument as to why the jury should have been instructed
that the crimes of ongoing criminal conduct, transacting business as an unregistered
broker, and selling unregistered securities were specific intent crimes. As to the
remaining counts of securities fraud, we find the aforementioned instructions on the
statutory elements of securities fraud and the corresponding burden of proof for the
State adequately informed the jury of the points of law necessary to resolve these
remaining counts.
17
3. The defendant obtained the transfer of possession,
control, ownership or the beneficial use of property from [the
investor] by the deception.
(Emphasis added.)
Rod concedes that each investor who testified was assured that his or her
investment would be secured by the filing of a mortgage. He also concedes
there was evidence that he or someone from his company had promised each
investor a monthly interest payment.
However, he claims that promise of
payment “clearly was not an issue nor was it a method by which the deception
was alleged to have been committed.” Rod claims this instruction was prejudicial
because it allowed the jury to use the evidence of the collapse of the business as
a method of deception.
We reject Rod’s claim that promise of payment was “not an issue” or
“method by which the deception was alleged to have been committed” because
the trial information indicates otherwise. The minutes of testimony attached to
the trial information indicate that the State would present evidence that Rod
promised investors a fifteen percent return, paid monthly, and that their
investment would be backed by a mortgage on a specific piece of real estate.
The minutes specifically allege that Rod did not secure the note and he did not
inform the investors that he could not realistically meet the fifteen percent return.
The evidence also supports a reasonable inference that when Rod
promised to make the scheduled payments, he intended not to fully perform on
these payments or he knew that he would not be able to fully perform on these
payments. The evidence showed the Iowa Securities Bureau first investigated
Rod in 2000 when it received information that he was soliciting funds from the
18
public by guaranteeing an insured fifteen percent rate of return on investment.
Pursuant to these investigations, Rod signed an affidavit on August 25, 2000,
agreeing that he would not accept additional investment funds from the public.
Subsequently,
the
Wolford
Company
experienced
noticeable
cash-flow
problems. In early 2002, Rod started the aforementioned scheme by not paying
off certain preexisting mortgages. Even this scheme did not solve the Wolford
Company’s financial problems. By late 2002, the company’s financial condition
was severe, and Rod told a key internal employee that he feared the Wolford
Company would not survive.
Despite his doubts about the viability of his businesses and his agreement
not to solicit funds from the public, Rod used promises of fifteen percent monthly
interest payments to induce more investments.
He did not tell the investors
about the critical financial condition of the company. Instead, he assured them
their investments were secure because they were secured by a mortgage on the
property. As noted above, the investments were not secured with a mortgage.
At trial, Rod claimed he intended to pay back his investors, but also stated that
he kept taking investor money because he thought that the worst that could
happen to him was that he would incur a civil lawsuit. Based on the foregoing
evidence, we find the jury could have reasonably inferred that Rod never
intended to make all of these scheduled payments, or that he promised to make
these payments even though he knew they would not be able to be made. The
court did not err when it included the term “payment” in these instructions.
In light of the complex and pervasive deceptive actions carried out by Rod,
with the help of his children and other employees in the Wolford Company, we
19
also find no merit to Rod’s claim that the court should not have used the aiding
and abetting instruction in certain circumstances.
IV. Conclusion
Having considered all arguments claimed on appeal, whether or not
specifically addressed in this opinion, we affirm the district court’s decision
entering judgments on the convictions.
AFFIRMED.
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