United States v. Waters
| Decision Date | 10 September 2019 |
| Docket Number | No. 18-11333,18-11333 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alphonso I. WATERS, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Bernita Malloy, Christopher Conrad Bly, John Andrew Horn, Jane Elizabeth McBath, Diane Claire Schulman, Lawrence R. Sommerfeld, U.S. Attorney Service - Northern District of Georgia, U.S. Attorney's Office, Atlanta, GA, for Plaintiff-Appellee.
Gary Bunch, Gary Bunch PC, Carrollton, GA, for Defendant-Appellant.
Before ED CARNES, Chief Judge, JULIE CARNES, and CLEVENGER,* Circuit Judges.
In this wire fraud case, we are once again confronted with the question of when a lie is just a lie and when it is a federal crime. "It is conceded that there is a class of lies, voluntary, aimless, yet weak and wicked lies," Green’s Adm’r v. Bryant, 2 Ga. 66, 68 (1847), that our law does not forbid. And the federal wire fraud statute "forbids only schemes to defraud, not schemes to do other wicked things, e.g., schemes to lie, trick, or otherwise deceive." United States v. Takhalov, 827 F.3d 1307, 1310 (11th Cir.), as revised (Oct. 3, 2016), opinion modified on denial of reh’g, 838 F.3d 1168 (11th Cir. 2016). "The difference," we have explained, "is that deceiving does not always involve harming another person; defrauding does." Id.
Alphonso Waters, Jr., relies on that distinction to argue that the lies he told in the process of obtaining a $6 million loan did not amount to fraud. He sought that loan in 2013 from a private lender who discovered that Waters had several years’ worth of federal tax liens outstanding. To calm the lender’s concerns, Waters sent it a letter that appeared to be from the IRS approving him for a payment plan to pay off the tax liens. Then he sent the lender another letter stating that, as far as he knew, the first letter really was from the IRS. Both of those letters were lies –– lock, stock, and barrel; stem to stern, top to bottom. But, Waters argues, they weren’t statutorily damned lies; they weren’t lies constituting wire fraud because they didn’t affect the bargain between the parties. He reasons that any lie he told about his creditworthiness was harmless because the collateral for the loan was worth $8.4 million, which is more than the total amount of the loan. We are not convinced.
Waters was the CEO of Family Practice of Atlanta, a medical practice he owned and operated with his wife, Dr. Sondi Moore-Waters, a physician. He ran the business side of things, she ran the medical side. Sometime around 2011 they decided they needed a bigger building for the growing practice. They formed Sondial Properties, LLC (a portmanteau of the couple’s names, Sondi and Al), and the company borrowed about $4 million in the form of two different construction loans from JP Morgan Chase Bank. Those loans matured on October 18, 2013, and Sondial immediately defaulted on them because of delays and cost overruns with the construction.
Waters sought the help of a commercial mortgage broker in finding a $6 million transitional loan so he could pay back the $4 million to Chase and also finish construction. Waters’ broker, Tony Baldwin, contacted Chesterfield Faring, Ltd., a real estate services and investment firm that specialized in finding funding for lapsing or lapsed loans. Chesterfield’s CEO was a man named Larry Selevan. Selevan and his company helped borrowers find loans by researching the financial viability of a proposed project and packaging that information so potential lenders could easily decide whether to provide financing.
Selevan proposed the loan project to Colony Capital, LLC. Colony was a private equity firm and real estate investment trust that provided financing for commercial realty projects deemed to exceed a bank’s normal risk profile. Michael Sanchez, the senior vice president of Colony, oversaw Sondial’s loan application. He understood that the loan "had to be closed very quickly" so Waters could pay off Chase and meet construction deadlines. On October 25, 2013, Sanchez sent Chesterfield a term sheet outlining the terms and conditions that Colony proposed for the loan. Under the proposal Colony would lend Sondial $6 million and, in exchange, it would receive a first priority mortgage on the new building and rights to all leases and rents there, as well as about a 7% interest rate for the two-year initial term. Al Waters signed the term sheet on behalf of Sondial.
With the terms of the loan all set, the due diligence phase began. Waters and Moore-Waters filled out a personal financial statement for Colony, listing their assets, income, liabilities, and things of that nature. To say the least, they weren’t as forthcoming as they should have been. The couple left blank the line asking them about any unpaid income taxes, and they listed "0" as the amount or value of outstanding liens and other "assessments payable." Truth be told, the couple had nearly half a million dollars of outstanding federal tax liens filed against them. And the truth was told, or at least uncovered, when Colony ran a background check a few weeks later that turned up the tax liens.1
As you can imagine, that discovery wrenched the lending process to a halt. When he found out about the liens Sanchez was "very very angry" because it "was an item that absolutely should have been disclosed" earlier in the process. He saw the lack of disclosure as a "deal killer" because he didn’t want "to close a transaction with [those] outstanding liens." Sanchez explained:
This [sort of thing] is disclosed up front. This is something that when you find out during when you run a background check and hear for the first time, that that [sic] is a huge red flag in terms of whether or not, you know, this borrower has been disclosing and been forthright on what his financial condition is.
Selevan, the CEO of Chesterfield, encouraged Sanchez not to walk away from the deal and to work with Waters while they tried to come up with a solution to the tax liens. Sanchez agreed to wait and see. He considered the liens a "gating issue" that had to be resolved before the loan could be closed. Waters’ attorney, David Gentry, understood that. Because he did, on December 13, 2013, he sent the IRS Taxpayer Advocate a letter asking for approval of a payment plan and requesting that the IRS provide "immediate assistance" so Waters could close the loan with Colony by December 18.
Also on December 13, Waters himself called his Congressman’s office to ask for help getting the tax liens removed. The constituent services representative told him that the lien removal process typically took 30–45 days, but that it would take longer for him because the IRS had already closed for the holidays and would not begin processing any new requests until January. Waters told the representative to send the request to the IRS anyway, which she did. Paraskevidekatriaphobics would note that December 13 was a Friday.
The following Monday, December 16, Waters emailed Gentry a letter that seemed to be from the IRS. It was also dated December 16, 2013, and appeared to be on "Department of the Treasury: Internal Revenue Service" letterhead and bore the seal of the IRS Office of the Chief Counsel. It stated in full:
Four minutes after receiving the letter, Gentry forwarded it to Colony’s attorney, Beau Baker, and asked if it resolved Colony’s concerns. It did not. Baker worried that the details of the IRS payment plan the letter referred to were months away, while the parties were trying to close the loan in the next couple of weeks. Sanchez, the senior vice president for Colony, also concluded that the letter was insufficient because it did not contain any specifics of the IRS payment plan.
Then there was the question of authenticity. After talking with tax experts at his law firm, Baker became concerned that the letter might not really be from the IRS at all. He did a Google search for "Rebecca Langford District Director" and learned that the IRS had phased out the "District Director" position nine years before, sometime around 2004. Baker wrote to the IRS to verify the letter, and Tony Baldwin, the initial mortgage broker, asked Waters if he had the contact information for Rebecca Langford. Waters responded that he did not. Undeterred, Waters sent this letter to Baldwin, Gentry, and Selevan:
Waters’ letter didn’t appease Colony. A few days into the new year, in response to an email from Baldwin that the delay in financing was putting Waters "in a very bad position," Sanchez (the Colony VP) emailed Baldwin, Waters, and others working on the deal: ...
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