United States v. Knight (25 F. Supp. 3d 1104, 2014)

OPINION AND ORDER

P.K. HOLMES, III, Chief Judge.

Currently before the Court are Defendant K. Vaughn Knight’s motion (Doc. 184) for acquittal or for a new trial and brief in support (Doc. 185), the Government’s response in opposition (Doc. 191), and Knight’s reply (Doc. 193). On November 18, 2013, a jury found Knight guilty of all eight counts charged in the fourth superseding indictment (Doc. 157). The Court extended the time for Knight to file post-trial motions until December 7, 2013. The motion for acquittal and/or motion for new trial was timely filed. Having considered the motion, and having conducted an exhaustive review of the record in this case, the Court finds that Defendant’s motion should be GRANTED IN PART and DENIED IN PART. The Court finds that the motion for judgment of acquittal should be granted as to Count 3 of the fourth superseding indictment and denied as to the remaining counts. The Court further finds that the motion for new trial should be granted as to all remaining counts: 1, 2, and 4-8.

I. Procedural History

Knight was originally charged in this case on January 16, 2013 along with two co-defendants, Brandon Lynn Barber and James Van Doren. Both Barber and Van Doren entered pleas of guilty prior to the scheduled trial date. On October 30, 2013, Knight was indicted in a fourth superseding indictment with one count of conspiracy to commit bankruptcy fraud in violation of 18 U.S.C. §§ 157 and 371 (Count 1), one count of bankruptcy fraud — concealment of assets and aiding and abetting in violation of 18 U.S.C. §§ 152(7) and 2 (Count 2), one count of aiding and abetting the making of false statements in relation to a bankruptcy proceeding in violation of 18 U.S.C. §§ 152(3) and 2 (Count 3), and five counts of money laundering and aiding and abetting in violation of 18 U.S.C. §§ 1957 and 2 (Counts 4-8).

Knight is a licensed attorney, and the charges against him stem from actions taken by Knight in connection with his representation of a client, Barber, over a period of time from early 2008 through 2010. The case involves consideration of numerous complex monetary transactions, including real estate deals, money transfers, and, in large part, the allegedly improper use of Knight’s interest on lawyer’s trust account (“trust account”) to hide money from Barber’s creditors. The case also involves consideration' of complicated bankruptcy issues, including what information must be reported — and by whom — to the bankruptcy court when an individual files for Chapter 7 bankruptcy. Although the Government’s closing request was for the jury to rely on its common sense in deciding this case, there was not much about this case that lent itself to a common-sense analysis. This was one of the most technical and complex cases the Court has tried.

On November 18, 2013, after a nine-day trial, the jury returned a verdict of guilty as to all eight counts. Knight now argues that the Government presented no evidence that Knight acted in contemplation of Barber filing for bankruptcy, and therefore the Court should enter a judgment of acquittal as to the conspiracy, bankruptcy fraud, and money laundering counts. Knight also argues that the Government presented no evidence at trial that Knight aided and abetted Barber in making false statements, made a statement to the bankruptcy court, or had any intent to defraud, and therefore the Court should enter a judgment of acquittal as to the false statements count. In the alternative, Knight argues that the Court should grant a new trial as to all counts as the evidence preponderates heavily against the guilty verdict as to each count such that a serious miscarriage of justice will occur if a new trial is not granted.

II. Preliminary Discussion of Evidence and Testimony

The Court has conducted a thorough and exhaustive review of both the documentary evidence admitted and the testimony presented at trial. For purposes of the motion for judgment of acquittal, the Court viewed the evidence in a light most favorable to the jury’s verdict. However, for purposes of the motion for new trial, the Court engaged in an overall review of the evidence to determine whether the verdicts as to each count were contrary to the weight of the evidence presented at trial. This preliminary discussion is largely a recitation of facts that are not disputed by the parties unless otherwise noted. Although these facts were presented at trial through either documentary evidence or testimony, the ultimate relevance of particular facts to the charges against Knight will be discussed and analyzed in the analysis section of this opinion, Section III, below.

Brandon Barber was a real estate developer in Northwest Arkansas from 2003 until around the time of the filing of his personal bankruptcy petition in July 2009. One of Barber’s most high-profile projects was the “Legacy building,” a high-rise condominium building on Dickson Street in Fayetteville, Arkansas. The Legacy project was financed with a construction loan in the amount of $16,700,000 by Legacy National Bank of Springdale, Arkansas (“Legacy Bank”). (Def. Ex. II). The loan was made in late 2005 for the benefit of one of Barber’s limited liability companies, Lynnkohn, LLC (“Lynnkohn”), with Barber, Seth Kaffka (Barber’s brother-in-law at the time), and their wives all serving as personal guarantors. Id. Barber began to have financial troubles in 2007 when a supplier of materials on the project was not paid and the supplier filed suit in state court to foreclose a materialman’s lien. Legacy Bank, a party to the action, filed a foreclosure cross-claim against Barber that ultimately resulted in the bank taking over the Legacy building property and obtaining a consent judgment of foreclosure against Lynnkohn, Brandon and Keri Barber, and Seth and Laura Kaffka. Legacy Bank later obtained a deficiency judgment after the foreclosure sale of the Legacy building. The deficiency judgment was entered on November 26, 2008, in the amount of $8,400,000.

In January of 2008, Vaughn Knight, having heard about the foreclosure action on the Legacy building and Barber’s various legal and financial troubles, communicated with Barber by email. In the email, Knight thanked Barber for some tickets to a Dallas Cowboys game and said that he might be able to offer Barber some “limited” legal advice to return the favor. (Gov’t Ex. 60). Knight told Barber in the email that he had “quite a bit of experience in the areas of concern.” Id. In reply, Barber welcomed the offer, stating “Vaughn, your email might be an angel to me. I definitely need advice.... ” Id. Knight began his representation of Barber shortly thereafter and continued the representation through at least the initial stages of Barber’s personal bankruptcy proceedings in the latter half of 2009. Knight also represented Barber on a pro bono basis during some portion of the bankruptcy proceedings in 2010. When the representation first started, Knight charged Barber an hourly fee of $200. (Def. Ex. 176). From January 12, 2008 to February 29, 2008, Knight billed Barber for 191 hours, resulting in fees of $37,400. Id. Thereafter, Knight charged Barber at a monthly rate of $17,000. Barber was then billed separately for the Knight Law Firm’s representation of Barber in his filing for personal bankruptcy. (Gov’t Ex. 76; Def. Ex. 148).

One of the first major legal issues to be addressed at the time Knight began representing Barber was the Legacy Bank foreclosure action. In late February 2008, Knight met with Barber, Seth Kaffka, and a few Barber Group employees to discuss the foreclosure action. On February 28, 2008, Knight drafted an email to Marshall Ney, counsel for Legacy Bank, and emailed it to Barber for review. (Gov’t Ex. 64). In the draft, Knight appears to use the possibility of Barber having to file for personal bankruptcy as a bargaining chip in negotiating the Legacy Bank debt with Ney. In making an offer to settle the Legacy Bank debt, Knight proposed telling Ney that “a deficiency judgment of $1 million is no different that [sic] $10 million. The guarantors can’t pay either one and they are forced to file bankruptcy.” Id.

In March of 2008, around the same time that Knight was working on the Legacy Bank foreclosure action, t Barber was putting together two real estate deals that he hoped would net him some cash. One deal thgt Barber and Knight worked on with another attorney retained by Barber, Ken Hall — using a new Barber entity called Delta Land Holdings, LLC — apparently never came to fruition. (See Gov’t Exs. 9, 20). The second deal that Barber was working on eventually closed on March 31, 2008. This deal was referred to by the parties at trial as the “Ballpark” or “Outfield transaction.” For the sake of consistency, the Court will refer to the transaction throughout this opinion as the “Ballpark transaction.” As the real estate transactions discussed in this case are complex, the Court will address each of them separately at the appropriate time in this chronological recitation of facts.

A. Ballpark Transaction

The land involved in the Ballpark transaction was a forty-acre tract of property located near the AHVEST baseball stadium in Springdale, Arkansas. Darin and Christine Riggins had the property listed for sale through a revocable trust. Although Knight had drafted an agreement for a sale of the property directly from the Rigginses to Epsilon Investments, LLC (“Epsilon”) (Gov’t Ex. 10), that deal did not materialize. Prior to the Ballpark transaction taking place, John David Lindsey — through his entity JDL Development, LLC — purchased the property from the Rigginses. After Lindsey acquired the property from the Rigginses, Barber arranged a transaction whereby he used a newly created entity, EIA International, LLC (“EIA”), as the middle man, and received $1,200,000 in a “land flip” transaction. EIA bought the property from Lindsey’s entity for $2,000,000. (Gov’t Ex. 4a). On the same day, Outfield Development, LLC, owned by a man named Bob Gaddy, bought the property from EIA for $3,200,000. (Gov’t Ex. 4b). The transaction was funded by a $3,200,000 loan from First Federal Bank (“First Federal”) to Outfield Development, LLC. (Def. Ex. 132). While Knight had originally prepared a contract for a sale between the Rigginses and Epsilon, Ken Hall took the lead in negotiating and preparing the documents used in the Ballpark transaction as it ultimately came to be.

Hall testified that he suggested to Barber that Barber needed a loss to offset any gain he might show on the Ballpark transaction. Barber supposedly had an existing liability to Epsilon. This vague antecedent agreement was memorialized in a contract dated March 21, 2008, drawn up by Hall as part of the Ballpark transaction, in which Barber Development, Inc. (“Barber Development”) agreed to be contractually responsible to satisfy losses and ongoing indebtedness obligations and expenses of Epsilon resulting from Epsilon’s purchase and ownership of property in another real estate development project known as “Timber Trails.” (Gov’t Ex. 14; Def. Ex. 184). Barber, through Barber Development, had previously sold four lots in the “Timber Trails” development to Epsilon. In order to buy the Timber Trails houses, Epsilon had obtained a line of credit for $600,000, and Barber Group was to build and sell the homes for Epsilon. By the time of the Ballpark transaction, Barber had exhausted Epsilon’s line of credit, and the Timber Trails houses were unfinished and encumbered by liens. Epsilon had at that point incurred losses of $65,000 on the Timber Trails deal from discharging liens and paying interest on the line of credit.

Another property owned by Brandon Barber and/or his wife (now ex-wife), Keri Barber, was also in foreclosure. This property was referred to by the parties as the “Sloan Estates property,” and the Court will refer to it as “Sloan Estates.” As a part of the larger Ballpark deal, Epsilon agreed to buy Sloan Estates and assume a $514,000 mortgage held by First Federal Bank. Van Doren testified that Barber told Van Doren that his purchase of Sloan Estates was needed to induce First Federal to finance the Ballpark transaction for Bob Gaddy. Barber agreed to pay Epsilon a $25,000 incentive fee for purchasing Sloan Estates.

The Ballpark transaction closed on Monday, March 31, 2008. Although Hall was originally supposed to handle the closing, he backed out the day before the transaction closed, saying that it was because he could not provide a closing protection letter. (Gov’t Ex. 29). Donna Stewart from the title company was to handle the closing instead. Ken Hall testified that the closing letter was just an excuse he came up with to distance himself from the deal after he began to have some misgivings about it. There are, however, emails to and from Hall regarding the deal dated the morning of the closing and after the closing. (See Def. Exs. 54, 128). Hall testified that he never communicated any of his vague concerns to Knight. After the transaction was funded by First Federal— on April 2, 2008 — the proceeds resulting from the land flip were disbursed to the Knight Law Firm ($688,937), Bob Gaddy ($435,371), and EIA ($77,841). (Gov’t Ex. 4b).

The approximately $688,000 to the Knight Law Firm was placed in the firm’s trust account to be escrowed for EIA and Epsilon with Knight acting as the authorized escrow agent. Barber and Van Doren had signed an escrow agreement on behalf of their respective entities. (Gov’t Ex. 12). Both the escrow agreement and the related settlement agreement were drafted by Ken Hall. On the night before closing, Knight made largely non-substantive changes to the escrow agreement at Van Doren’s request. It was Barber and Hall who suggested using Knight as the escrow agent just days before the closing took place. (Def. Ex. 133). Van Doren testified that the escrow agreement was Barber and Hall’s idea after Hall raised the issue of Barber needing to note a loss to offset any gain -on the Ballpark transaction.

Under the escrow agreement, Barber and Van Doren agreed to escrow $688,000 from the proceeds of the Ballpark transaction to be used to cover Epsilon’s losses on the Timber Trails property and to protect against future losses on the four unsold Timber Trails lots. (Gov’t Ex. 12). After the closing, as had been contemplated by the parties to the escrow agreement, Knight transferred $90,664 to Epsilon on the same day he received the disbursed funds (April 2, 2008), representing approximately $65,000 in losses on Timber Trails that had already accrued and $25,000 for the “incentive fee” for Epsilon taking over the Sloan Estates mortgage. (Gov’t Exs. 15-16). Also on April 2, as contemplated by Barber and Van Doren, Knight transferred $32,000 of the escrowed funds to Van Doren personally to repay personal loans that Van Doren had made to Barber. Id. On the same day, the parties tentatively agreed to using another $100,000 of the escrowed funds to pay off a Barber debt to Enterprise Bank (Def. Ex. 29), but that transfer was ultimately not made.

Knight held the remaining funds in escrow in his trust account and later released them to Barber at various points in time. Van Doren testified, and certain emails in evidence appear to bear out, that the escrowed funds were to be released to EIA (Barber) in installments as each Timber Trails house was sold. It was at least Van Doren’s understanding, as he explained to Ken Hall, that “for example, when Lot 108 is sold ... we release $154,000 for that loan balance since the loan will be paid off by the proceeds from the buyer. This is the way we ensure that we get our deal: that the houses are sold and we no longer have those loans.” (Def. Ex. 128). The escrow agreement itself is not clear as to this installment plan. Rather, the escrow agreement contemplated that funds would be released as any debts, costs, and expenses — other than debts, costs, and expenses related to the principal debt on the real property — were paid and after Epsilon had been reimbursed for any expenses previously paid by Epsilon. (Gov’t Ex. 12). This language is in line with Hall’s understanding, as he explained to Van Doren, that money could be released to EIA “upon paying all liens and other claims related to the Timber Trails houses, reimbursing all out of pocket expenses to [Van Doren] and Ian [Sadler] related to the houses and then escrowing some cash for ongoing debt service related to these homes.” (Def. Ex. 128).

At trial, the parties disputed whether the escrowed funds were properly handled by Knight. The Government argued that Knight did not pay out the funds in accordance with his duty as escrow agent, while the defense argued that Knight paid out the funds as contemplated by the escrow agreement and/or pursuant to instructions by the parties to the agreement. Three of the four Timber Trails lots were sold by June 2008, and the fourth lot sold in October 2009 after having been under a lease-to-buy agreement for a period of time, which ultimately fell through. (Def. Exs. 31,50,62,194; Gov’t Ex. 17). Most of the funds from the escrow account were released to Barber by June 2008. On June 3, 2008, Van Doren informed Knight that he agreed, at Barber’s suggestion, that the amount of the funds held in escrow could be lowered to $30,000 to cover any expenses for the fourth, unsold house. (Def. Exs. 180,181).

As another facet of the Ballpark transaction, EIA, Outfield Development, and Epsilon entered into an indemnification agreement whereby EIA and Epsilon agreed to indemnify Outfield Development for a portion of Outfield Development’s loan obligations to First Federal. In return, EIA and Epsilon were to share in any profits generated by the property. (Def. Ex. 133).

On the same day that the Ballpark transaction was funded by First Federal and $688,000 from that transaction was placed in Knight’s trust account, First State Bank (“First State”) force-closed fourteen bank accounts held by Barber personally and on behalf of his various entities. Christy Bennett, a Barber Group employee, picked up cashier’s checks for each of the closed accounts at First State and later met with Barber and Knight. At that meeting, Barber represented to Knight that he was on his way to New York, had business expenses that needed to be paid, and no longer had an account out of which to pay them. Knight agreed to allow Barber to place the money from those cashier’s checks, totaling approximately $53,000, into his trust account. That same afternoon, after receiving a request from Bennett and approval from Barber, Knight wrote out 11 payroll checks to Barber Group employees (or former employees owed checks), a check to Cox Communications for Barber Group’s office bill, a check to MetLife to cover dental insurance for employees, and a check to Loren Ray — a Barber Group employee — to reimburse her for travel expenses she incurred on Barber’s behalf.. (Gov’t Ex. 37). The total amount of these issued checks was $13,925.40. Id.

The first Timber Trails house sold on April 4, 2008; the second on April 25, 2008; and the third on May 25, 2008, thereby authorizing the release of some portion of the $688,000 in escrowed funds to Barber, as representative of EIA. As discussed above, it is not entirely clear how much money should have been released upon or before the sale of each house. The escrow agreement does not address this issue specifically, but the parties appear to have contemplated that the amount of funds released would represent the amount of liability Epsilon had for each particular lot. Accepting Van Doren’s understanding that the amount of any principal loan balance would be released upon the sale of each house (Def. Ex. 128), approximately $150,000 would have been authorized to be released with the sale of the first lot on April 4, 2008, id.; an unknown amount (the Court estimates an amount similar to the other three lots of $150,000) would have been released on April 25 for the sale of the second lot; and $160,000 would have been released on May 22, 2008 with the sale of the third lot (Def. Ex. 62).

On April 9, 2008, Christy Bennett opened a bank account at First Security. Bank in the name of Barber Group. She confirmed this, in an email to Knight when asking him to write a check to Barber Group on April 11, 2008. (Gov’t Ex. 38). On April 11, 2008, Knight wrote checks for $21,000 to Barber personally and $15,000 to Barber Group. Id. Thereafter, as evidenced by numerous emails, Knight made periodic payments out of the trust account to either a Barber entity or Barber personally at the request of Barber, Bennett, or both. Both the $688,000 in escrowed funds, as well as other funds from Barber, were held in Knight’s same trust account. Although some attempt to maintain a separate accounting was made, it is not always clear whether disbursements from .the trust account were made using funds deposited by Barber into the account or using funds freed up to be released to Barber pursuant to the escrow ■ agreement with Epsilon.

B. Spring Creek Transaction

The second large real-estate transaction discussed at trial was referred to by the parties as the “Spring Creek transaction,” which closed on June 3, 2008. The Spring Creek property was a 24-acre tract of land in Lowell, Arkansas owned by Jeff Whor-ton. Whorton testified that he agreed to sell the property to Barber for $1,200,000, although he had an appraisal stating the property was worth $1,700,000. Barber, again through EIA, was the middle man in a land flip between Whorton and Bob Gaddy that occurred on the same day. Whorton’s entity, Whorton Construction of Northwest Arkansas, Inc., sold the property.to EIA for $1,200,000. (Gov’t Ex. 34a). Barber arranged for Gaddy, through Gad-dy’s entity Spring Creek Holdings, LLC, to purchase the property with a $2,100,000 loan from First Federal Bank. (Gov’t Ex. 34b). EIA netted $900,000 in the land flip, less closing costs and other expenses paid out of the proceeds. EIA, however, never received any money from the transaction. At the closing of the transaction, Gaddy received a disbursement of $499,746 and Barber received a disbursement of $390,204. Id. From the $390,204 received by him, Barber obtained two' cashier’s checks issued at First Security: one for $50,000 payable to Knight for legal fees, and one for $340,204 payable to Barber.

Barber (personally, not as EIA) signed an indemnification agreement with Gaddy in which Barber agreed to assume and be responsible for fifty percent of the principal amount of the $2,100,000 loan. (Gov’t Ex. 115). Under the agreement, Barber was entitled to a fifty percent profits interest in the property unless there was á default. Id. Barber also agreed to execute a promissory note in an amount “consistent with the financial benefit derived by Barber as a result of Spring Creek incurring the Loan,” with such promissory note becoming effective upon an “Event of Default.” Id.

Donna Stewart, who had also prepared the closing documents for the Ballpark transaction, prepared the HUD statements for the Spring Creek transaction. Barber forwarded the HUD statements to Knight on the evening of June 2, 2008, the night before the closing. (Gov’t Exs. 31-32). There was no responsive email from Knight in evidence. Assuming Knight received those emails, Knight knew — at least the night before closing — that the Spring Creek transaction was in the nature of a land flip with EIA as the middle man. Also, on July 9, 2009 (over one year later), Knight apparently reviewed the closing documents for Spring Creek and noted that Barber had a promissory note showing that he owed $390,000 to Bob Gaddy. (Gov’t Ex. 115).

On June 5, 2008, Barber deposited the $340,204 cashier’s check into a personal bank account he then had open at Priority Bank. According to testimony by Government Agent Steve Williams, on June 10, 2008, Barber wired $200,000 from his Priority Bank account to one of four bank accounts he held at Citbank in New York (“Citibank Account 1”). On July 15, 2008, Barber transacted two wires of approximately $98,000 each from Citibank Account 1 to two other Citibank accounts in his name (or in his name as a trust for one of his children) (“Citibank Accounts 2 and 3”). On August 11, 2008, Barber transferred a little over $95,000 from each of Citibank Accounts 2 and 3 to a fourth Citibank account in his name (“Citibank Account 4”). On August 12, 2008, Barber then transferred the approximately $191,000 from Citibank Account 4 to the Knight Law Firm business account. (Def. Ex. 68). Knight kept $40,000 in fees and moved the remaining $151,000 into his trust account. Id. On August 15, 2008, Knight transferred $95,000 by check from his trust account into Barber’s personal account at Priority Bank to be used to pay Barber’s personal Citibank credit card bill. (Def. Exs. 69, 71). This transfer is the subject of Count 4. The deposit, however, was not made in time, and Citibank returned payment for insufficient funds. (Def. Exs. 139, 140). When Christy Bennett went to Priority Bank to attempt to wire the funds to Citibank to get the credit card bill paid, she was told that Priority Bank had force-closed Barber’s account. Id. On August 19, 2008, Barber then placed $96,483 from the forced closure of his account at Priority Bank back into Knight’s trust account. (Def. Exs. 69, 72). On August 21, 2008, Knight wired $95,230 from his trust account to Citibank for payment of Barber’s credit card account. This transfer is the subject of Count 5.

On June 25, 2008, Barber placed a $21,612 cashier’s check from Priority Bank into Knight’s trust account to cover the interest payments owed by both EIA and Epsilon to Outfield Development. (Def. Ex. 64). On July 1, 2008 Knight issued two checks from his trust account to pay interest owed by EIA ($7,204) and Epsilon ($14,408) to Outfield Development as a result of the Ballpark transaction’s indemnification agreement. (Def. Ex. 65). Prior to this payment, Knight inquired of Barber via email “I assume you are going to wire your portion and Jimmy’s [(Van Doren)] ($21,612.63) to me so that it can appear to first federal and others that you aren’t paying the money? Correct?” (Gov’t Ex. 71).

The Legacy Bank foreclosure judgment against Barber (and others) on the Legacy Building was filed in late July 2008. (Def. Ex. 1, p. 3).

On September 29, 2008, Barber received a $64,000 check as a payment for use of his box at Texas Stadium. (Def. Exs. 135-136). Barber ultimately endorsed this check over to Van Doren, who deposited the check into Van Doren’s personal account at Citibank. The money was not to be used by Van Doren but, rather, was to be used to pay Barber’s bills or expenses. Knight testified that he had no knowledge of this check until Van Doren gave a deposition. in Barber’s bankruptcy adversary proceeding in 2010.

C. Executive Plaza Transaction and the Old Missouri Office Building

In September and early October of 2008, Barber was attempting to structure the third big real estate transaction discussed at trial, which was referred to as the “Executive Plaza transaction.” The Executive Plaza transaction ultimately closed on October 7, 2008. The Executive Plaza property was commercial property in Spring-dale, Arkansas composed of six lots owned by Jeff Whorton. At the time he was structuring the Executive Plaza deal, Barber was also trying to sell his personal residence in Springdale to Whorton, but Whorton was not initially interested. Whorton testified that he later told Barber that he would buy Barber’s personal residence if Barber would find a buyer for Whorton’s Executive Plaza property and obtain favorable financing for Barber’s residence. Barber arranged for Gary Combs to purchase five of the six Executive Plaza lots and for Brandon Rains to purchase the remaining lot. Combs and Rains obtained financing from First Federal Bank to close the transaction.

With Barber structuring the deal, 'Whor-ton agreed to pay a kickback of $550,000 to Combs and $100,000 to Rains oht of closing proceeds to induce them to purchase the property. Whorton also originally agreed to pay Barber $400,000 as a supposed commission or finder’s fee for arranging the transaction. Whorton testified that the purchases by Combs and Rains were conditioned on Whorton paying out those cash kickbacks after closing. Prior to the closing, Knight helped Barber to form a new entity, NWARE Investments, LLC (“NWARE”) that could accept the expected payments to Barber resulting from the Executive Plaza transaction. The articles of organization for NWARE were filed on October 6, 2008, one day before closing.

After closing, Whorton wrote checks to Combs and Rains for the agreed upon kickbacks, and a check in the amount of $394,000 to NWARE. Barber became concerned with the check because it was written on Legacy Bank, which had the foreclosure judgment against him. A few weeks later, Barber returned the $394,000 check to Whorton and asked Whorton to instead wire the money to Knight’s trust account. At this time, Whorton negotiated the payment to Barber down to $314,000. On October 31, 2008 (over three weeks after the Executive Plaza closing), Whor-ton wired $314,000 to Knight’s trust account, at Barber’s instruction, and without conversing with Knight. Whorton issued a W-9 form to NWARE Investments, LLC on October 9, 2008. (Gov’t Ex. 49). Barber later asked Whorton to change the W-9 form to Brandon Barber, and Whorton issued a W-9 for Brandon Barber on October 15, 2008. (Gov’t Ex. 50). In June 2009, Barber instructed Christy Bennett to have Whorton’s accountant issue a W-9 to Barber Properties, LLC instead. (Gov’t Ex.' 43; Def. Ex. 114). A “corrected” IRS form 1099 was then issued to Barber Properties, LLC instead of Brandon Barber individually. (Gov’t Ex. 52).

According to testimony, Whorton bought another property referenced by the parties as “the Old Missouri office building” from Barber for $1,650,000. Whorton obtained a loan for the purchase from First Federal for $2,150,000. As a result, Whorton got $450,000 cash out of the sale, which he testified was disclosed to First Federal, as the cash was to be used to make improvements to the Old Missouri property. There was very little documentary evidence regarding the specifics of this transaction. Although the Government treated this transaction as a ■ part of the larger Executive Plaza transaction, it is unclear from the evidence and testimony presented how the sale of the Old Missouri office building was related to the sale of the Executive Plaza lots other than the fact that both Whorton and Barber were involved in each transaction. The closings also apparently occurred either on the same day or very close in time. One significant difference between the transactions is that Combs and Rains were the borrowers from First Federal in the Executive Park transaction and Whorton was the borrower from First Federal in the Old Missouri transaction.

On the morning before the Executive Plaza transaction, Knight emailed Ney, counsel for Legacy Bank, asking that Legacy Bank release a third-priority lien on the Old Missouri property so that Barber could sell the property to Whorton. Knight represented that the sales proceeds would not be enough to cover even the first-priority lien. Ney agreed to entry of a consent judgment to release Legacy Bank’s lien.

In October 2008, Barber began trying to arrange another deal involving Barber, Epsilon, and Whorton. In order to facilitate this anticipated deal Barber planned to infuse capital into Epsilon, so that Epsilon — as a more credit-worthy borrower than Barber at this time — could obtain a loan from Bank of Fayetteville to fund the anticipated deal. Whether related or not, three things happened in late October. First, while in New York to discuss this anticipated deal with Epsilon, Barber delivered a briefcase to Van Doren that contained $30,000 in cash. Barber asked Van Doren to put it in a safe place because he didn’t feel comfortable keeping it with him. The money was to be used for Barber’s benefit. Van Doren put the briefcase in a safe deposit box in New York. Second, on the same day, Van Doren opened a business account for Epsilon in order to receive the expected capital infusion for the anticipated deal with Barber and Whorton. When he opened the account, Van Doren told the bank that he anticipated both that Epsilon would be taking on a new member who would provide additional capital and that he expected the contribution to be $850,000. (Def. Ex. 116). Third, the next day — October 31, 2008 — -Whorton wired $314,000 into Knight’s trust account (the negotiated amount paid to Barber as a result of the Executive Plaza transaction).

On November 10, 2008, Van Doren emailed Knight and Dan Rubin.(Barber’s counsel in New York), with copies to Ian Sadler and Barber, and stated that after seeking advice of counsel in New York, Epsilon did not want to take Barber on as a member and instead would engage with Barber in some sort of consulting-fee deal on the anticipated transaction. (Gov’t Ex. 23; Def. Ex. 115). Barber agreed to that arrangement. Id. It was agreed that $150,000 would be sent from Knight’s trust account to the Epsilon business account. Id. That same day $150,000 was, in fact, transferred from Knight’s trust account to the Epsilon business account. Ultimately, Bank of Fayetteville rejected Epsilon’s loan application on the anticipated deal, and the deal did not occur. (Def. Ex. 121). Van Doren and/or Epsilon kept all but $27,000 of the $150,000 supposedly to cover losses' Epsilon incurred on Sloan Estates. Epsilon did not sell Sloan Estates until February 2009. The $27,000 was wired by Van Doren to the NWARE account on March 1, 2009.

At this point in time, the relationship between Barber and Van Doren was becoming contentious. While emails around this time indicate that Van Doren was still interested in possibly pursuing deals with Barber (see, e.g., Gov’t Ex. 100), Van Doren testified that he was cutting ties with Barber. On March 5, 2009, Van Doren mentioned in an email that he thought Barber was looking at filing for personal bankruptcy in the near future. Id. Fearing that Barber might soon file for personal bankruptcy, Van Doren had an attorney draft a letter to Barber dated March 18, 2009, characterizing the $150,000 payment to Epsilon as payment for an “antecedent debt” for Epsilon’s losses on the Sloan Estates debt. (Def. Ex. 112). It is unclear how Barber would have owed a debt for Epsilon’s losses in that deal or how the losses would have been antecedent to the November 2008 payment when Sloan Estates was not sold at a loss until nearly four months later. However, once the $150,000 hit the Epsilon account, Barber had no legal claim to the money (especially as he did not become a member of Epsilon at Van Doren’s request), and it appears that Van Doren ultimately determined that he could use the money as he saw fit. Another letter was written to Barber on April 15, 2009 on behalf of Epsilon, purporting to account for the losses incurred by Epsilon and the way the $123,000 ($150,000 minus $27,000 ultimately refunded to Barber) was used to cover those losses. (Def. Ex. 111). The April letter also set forth that Epsilon viewed that it was still owed money by Barber for additional losses. Id.

Towards the end of 2008, Barber Group was going out of business due to mounting tax liabilities for which the IRS began to. demand payment in July of 2008. (Def. Ex. 6). On November 3, 2008, an insurance agent emailed Christy Bennett to let her know that “BlueCross has been told that The Barber Group is out of business and is asking questions. We need to address this or they will cancel the group.” (Def. Ex. 4). Bennett immediately emailed Barber and Knight saying that they had to get a new entity formed so that they could transfer the insurance over. Id. At the time, Bennett, who received insurance coverage through Barber Group, was pregnant. She testified that she could not afford for her insurance coverage to lapse. The next day, November 4, 2008, the insurance agent again emailed Bennett and told her that if they did not get information for a new entity to BlueC-ross that day, she was afraid BlueCross would cancel the insurance group and not transfer it to a new entity. (Def. Ex. 5). Bennett again forwarded the email to Barber and Knight, marked high importance, and asked them to let her know what to tell the agent. Id.

Although NWARE was formed on October 6, 2008 with the intent that it be used to accept payments generated as a result of the Executive Plaza transaction, the operating agreement was not forwarded to Barber for his signature until November 7, 2008. (Gov’t Ex. 40). In putting the final touches on getting NWARE together, Knight suggested on November 11, 2008, that Bennett’s home address be used as the address for NWARE, as he would rather it not have the same address as Barber Group. (Gov’t Ex. 41). Bennett and Barber agreed.

On November 21, 2008, Knight made out a check for $20,000 from his trust account to an account held by NWARE at First Security Bank (“the NWARE account”). This transfer is the subject of Count 6 of the fourth superseding indictment. On December 18, 2008, Knight made out a check for $20,000 from his trust account to the NWARE account. This transfer is the subject of Count 7. On January 16, 2009, Knight made out a check for $15,000 from his trust account to the NWARE account. This transfer is the subject of Count 8. By January 21, 2009, the funds allocated to Barber in Knight’s trust account were depleted, and there was no other activity into or from Knight’s trust account regarding funds of Bqrber or any of his entities.

Meanwhile, on November 26, 2008, Legacy Bank obtained a deficiency judgment against Lynnkohn, Brandon Barber, and the other personal guarantors on the Leg.acy building loan in the amount of $8,400,000 in the Legacy building foreclosure action. On December 29, 2008, Legacy Bank filed detailed discovery requests in an attempt to locate any Barber assets that it might be able to use to collect on its 'deficiency judgment. Barber, with Knight as his attorney, responded to Legacy’s discovery requests on February 23, 2009. (Def. Ex. 2). The NWARE account was disclosed, but EIA was not disclosed as a Barber entity, nor was Knight’s trust account listed anywhere (at this point, it appears Barber had no more funds in the trust account). Id. The responses to Legacy Bank’s interrogatory were verified under oath by Barber with Knight’s signature on the filing as the submitting attorney. Id. On March 2, 2009, Marshall Ney complained to Knight via email that the responses to Legacy Bank’s discovery were deficient. Ney, on behalf of Legacy Bank, later filed a motion to compel more complete responses. The state court granted the motion and ordered Barber to serve complete responses to Legacy Bank’s discovery requests by May 22, 2009. (Def. Ex. 15). Barber did not meet that deadline, and Ney filed a motion for contempt against Barber. Id. On June 29, 2009, the state court issued an order for Barber to appear before that court on July 24, 2009 to show cause as to why he should not be found in contempt of court for his failure to comply with the court’s earlier-order. Id. Barber’s discovery responses were then supplemented on July 14, 2009. (Def. Ex. 2). NWARE was again disclosed, but EIA and Knight’s trust account were not. Id. The supplemental responses were again verified under oath by Barber, but Lauren Pratchard, an associate at the Knight Law Firm, signed as the submitting attorney. Id.

At the same time as Barber and his ■team and Knight and his associates were gathering information to respond to Legacy Bank, Christy Bennett was also working with Vera Crider — with some input from Knight or his associates — to get tax information to Wanda Lanier, a CPA retained by Barber. Therefore, the documentary evidence in this case tends to overlap tax information, information related to the Legacy Bank discovery, and also information required for Barber’s personal bankruptcy proceeding. Bennett requested a meeting with Barber and Knight to discuss the Ballpark transaction to get everything straight for tax purposes. She recalled that a meeting took place where both Barber and Knight were present sometime in July 2009. She took notes from some meeting about the Ballpark transaction. (Gov’t Ex. 45). Knight did not recall being in such a meeting with Bennett and Barber.

D. Brandon Barber’s Personal Bankruptcy

On July 31, 2009, Barber, with Knight as his attorney, filed for Chapter 7 bankruptcy. Initially, only a skeletal petition containing limited information was filed. The filings were supplemented on September 11, 2009 (Gov’t Ex. 55b) and then amended on October 31, 2009 (Gov’t Ex. 55c). One more amendment was made on August 18, 2010 (Gov’t Ex. 55d), but that amendment was not an issue of major contention in this case. Barber agreed to pay Knight $20,000 for his services in the bankruptcy case, inclusive of a $299.00 filing fee. (Def. Ex. 148). The employment agreement stated that the fee was only for work through the first meeting of creditors and that Barber would have to pay Knight his current hourly rate for any work beyond that meeting, including, but not limited to, adversarial proceedings. Id.

From the evidence, it appears that Christy Bennett collaborated mainly with Mason Wann and Lauren Pratchard— Knight’s associates — in collecting information to put on Barber’s bankruptcy filings. On September 8, 2009, Bennett sent Wann a preliminary copy of the Statement of Financial Affairs (“SOFA”) with “the beginnings of the questions [she could] answer” and stating that she would send more information as she was able to get it. (Def. Ex. 106; see also Def. Ex. 143). Wann responded to Bennett’s questions, including advising Bennett that Barber’s personal payments out of the NWARE account would need to be disclosed, as the court would consider such payments as income to Barber. Id. Bennett sent entity lists to Wann on September 10, 2009. (Def. Ex. 98).

John Terry Lee was appointed as trustee in the bankruptcy case. Lee has been a bankruptcy attorney for more than 30 years and is a highly experienced bankruptcy trustee. Lee examined the petition, schedules, and SOFA in an effort to locate assets for the bankruptcy creditors. Lee testified that he found many deficiencies in the filings. In response to the September 11 filings of the supplemented bankruptcy schedules, Lee wrote a letter to Knight dated September 15, 2009, in which he asked Knight some questions raised in his mind by the disclosures. (Gov’t Ex. 56).

Knight responded to Lee by letter dated September 17, 2009. (Gov’t Ex. 57). In order to respond to Lee, Knight asked Barber and Bennett to send him a HUD statement for Barber’s house as well as the three most recent bank statements for NWARE. (Def. Ex. 96). Without copying Knight, Barber told Bennett not to send Knight the most recent NWARE statement. (Def. Ex. 97). As a result, Knight’s representation to Lee that he was- sending the three most recent NWARE statements (Gov’t' Ex. 57) was not correct. Knight told Lee that he would supplement a com-píete list of Barber’s business entities at a later date. Id. Lauren Pratchard sent additional documentation to Lee on October 23, 2009. (Def. Ex. 149). In the same email, she represented to Lee that Knight would be out of town the majority of the next week but that she would be available to provide additional information prior to the next meeting of creditors. Id. Lee testified that the amendments filed on October 31 did not really answer his questions and that EIA should have been disclosed.

On February 19, 2010, Legacy Bank filed 1 an adversary proceeding (“AP”) against Barber in bankruptcy court, objecting to a discharge of Barber’s debt. Legacy Bank did not believe that Barber had made truthful disclosures in his bankruptcy filings. Until the week before the AP went to trial, Barber was proceeding pro se as to the AP, as the bankruptcy representation agreement with Knight did not extend to representation during any adversary proceedings. On July 23, 2010, Marshall Ney deposed Van Doren in relation to the AP. Van Doren indicated during the deposition that he had no idea what happened to the $688,000 that was es-crowed with Knight after the Ballpark transaction but he knew that it did not all go to Epsilon as indicated by the HUD statement showing a “payoff to Epsilon.” Van Doren led Ney to believe that a small amount of the money was escrowed. At the time of the deposition, Ney had in his possession the escrow agreement between Barber and Van Doren outlining how the $688,000 was to be handled. Ney testified during trial that the escrow agreement had been Bates stamped by his office prior to the deposition, but that he had no memory of having had the document available to him. Because it appears that Ney had not actually reviewed the escrow agreement in his possession, the confusion as to the whereabouts of the $688,000 continued into the AP proceeding. Ultimately, the “unexplained location” of the $688,000 merited a mention in Judge Barry’s final order, which spurred further investigation of Knight. During his deposition, Van Doren also told Ney about the $64,000 check Barber signed over to him and about the $30,000 cash in a briefcase, but did not say anything about the $150,000 transfer to Epsilon. Barber, still proceeding pro se, was not present for the Van Doren deposition, so there was no cross-examination.

Knight, although he would not be paid, decided to enter an appearance in the AP on August 12, 2010, the week before the proceeding was set to go to trial. Knight emailed Ney to ask if Ney would object if Knight moved for a continuance of the trial since he was coming in late in the game. (Gov’t Ex. 54). Ney responded that he would object and that any delay in holding the trial would afford him time to subpoena the records for Knight’s trust account, based on questions that were raised during Ney’s deposition of Van Doren. Id. Knight accused Ney of unethical conduct in threatening to subpoena his trust records. Id. Ultimately — for whatever reason — Knight did not move for a continuance, Ney did not subpoena Knight’s trust account records, and the AP went to trial as scheduled. Prior to the trial, Knight expressed concern to Barber about Van Doren’s deposition testimony that Barber had given him $64,000. (Def. Ex. 105). Barber told Knight that he did not disclose that transfer because he didn’t think the money was income. Id.

After reading Van Doren’s deposition, Knight consulted with University of Arkansas professor of law Tim Tarvin. (Def. Ex. 137). Among other things, Knight asked Tarvin whether he should amend the bankruptcy schedules to account for the $64,000 and $30,000 transfers. Id. Tarvin advised Knight to amend the petition and schedules and to explain that Knight was not aware of those transfers until reading the deposition. Id. Knight did not ultimately amend the petition or schedules to list the $64,000 or $30,000 transfers. Knight testified that, after getting more information about the nature of the transfers from Barber, Knight ultimately decided that disclosure of those transfers was not required.

The trial of the AP, before United States Bankruptcy Judge Ben Barry, began on August 19, 2010, and lasted only about a day and a half. On the evening after the first day, Knight emailed Wann, his associate, saying that Barber did not do well on the stand and got caught in a couple of lies. (Def. Ex. 177). Knight told Wann that he thought Judge Barry would deny Barber a discharge because Barber lied about the fact that he did not have a bank account when, he transferred the $64,000 to Van Doren. Id. Knight told Wann that Ney was able to walk Barber through three or four accounts that were open in his name at that time and that Barber had “told us a long time ago those accounts were closed.” Id.

Judge Barry entered an order on November 9, 2010, denying Barber a discharge pursuant to both 11 U.S.C. § 727(a)(2)(A) and § 727(a)(4)(A). Under § 727(a)(2)(A), Judge Barry found that Barber’s discharge should be denied because of Barber’s use of both NWARE and James Van Doren to transfer and conceal his funds with intent to place the funds beyond the reach of creditors, within one year of the date of filing his bankruptcy petition. (Gov’t Ex. 55f). Under § 727(a)(4)(A), Judge Barry found “that Barber, failed to .disclose (1) the $2,225.13 balance held in the NWARE account on the date Barber filed his bankruptcy petition, (2) Barber’s claim for a commission from Justin Salter, ‘and (3) the total amount of loans from Justin Salter.” Id. at p. 18. Judge Barry found that those omissions amounted to statements made with fraudulent intent and with knowledge that the statements were false. Id. .at p. 25. In a footnote, the order also raised questions as to “[t]he unexplained location of approximately $588,000.00 [sic] that was transferred to the Knight Law Firm as a payment to Epsilon, but that Van Doren said he never received.” Id. at p. 27 n. 1. The transfers through Knight’s trust account were not, however, included as a basis for denial of Barber’s discharge.

After receiving Judge Barry’s opinion, John. Terry Lee emailed Knight on November 17, 2010, to ask about the $688,000 (identified as $588,000 in Judge Barry’s opinion). (Gov’t Ex. 58). Lee requested bank records to account for the funds. Id. Knight responded on the same day that he did not recall the specifics of the transaction and would need to seek permission from Barber to turn over the records absent a court order. Id. Knight did eventually respond to Lee with records, which Lee reviewed with a forensic accountant. Lee testified, however, that he did not pursue the matter further as trustee because he did not have sufficient trustee funds to make it worthwhile to try to locate any assets that might be reached from the escrow fund. Lee inquired as to why Barber used Knight’s trust account in the manner he did and was told that it was because Barber was unable to open a bank account to deposit funds. Lee did not find this explanation to be credible. He testified that he made a criminal referral regarding Barber to the United States Trustee for Arkansas based on the issues raised in Judge Barry’s opinion and order. No referral was made as to Knight.

On July 8, 2010, Ney, along with a former United States Attorney who then’ worked in the same law firm, had already met with government agents regarding possible criminal activity by Barber. The government investigation began at that time.

III. Legal Analysis

Knight moves the Court to set aside his conviction and to enter a judgment of acquittal as to all counts. Pursuant to Rule 29 of the Federal Rules of Criminal Procedure, “[a]fter the government closes its evidence or after the close of all the evidence, the court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” When reviewing the sufficiency of the evidence to support a jury verdict the Court must “view[] the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury’s verdict.” United States v. Ellefson, 419 F.3d 859, 862 (8th Cir.2005) (quotation omitted). The Court may reverse a conviction “only if no reasonable jury could have found the accused guilty beyond a reasonable doubt.” Id. (internal quotation omitted). “In ruling on a motion for a judgment of acquittal, the role of the court is not to weigh evidence but rather to determine whether the Government has presented evidence on each element to support a jury verdict.” United States v. Boesen, 491 F.3d 852, 857 (8th Cir.2007) (internal quotation omitted). “A jury verdict may be based on circumstantial as well as direct evidence, and the evidence need not exclude every reasonable hypothesis except guilt.” Ellefson, 419 F.3d at 863 (internal, quotation omitted). “In determining the strength of the evidence in a circumstantial case, it is the totality of the circumstances that must be weighed in making a decision on a motion for acquittal.” United States v. Water, 413 F.3d 812, 817 (8th Cir.2005). If all the evidence presented “rationally supports two conflicting hypotheses,” the conviction should not be disturbed. United States v. Baker, 98 F.3d 330, 338 (8th Cir.1996).

Knight moves in the alternative for the Court to grant him a new trial as to all counts for which a judgment of acquittal is not entered. Rule 33(a) of the Federal Rules of Criminal Procedure provides that “the court may vacate any judgment and grant a new trial if the interest of justice so requires.” The district court is granted broad discretion in deciding motions for new trial, and its decision is subject to reversal only for a clear and manifest abuse of discretion. United States v. Amaya, 731 F.3d 761, 764 (8th Cir.2013). In a motion for new trial, the court is not bound by the same standards as required in reviewing a motion for judgment of acquittal. In assessing whether a defendant is entitled to a new trial on the ground that the verdict is contrary to the evidence, “a district court may weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict.” Id. (internal quotation omitted). Despite its broad discretion, the Court is mindful that it should exercise its authority to grant a new trial “sparingly and with caution.” United States v. Vore, 743 F.3d 1175, 1181 (8th Cir.2014) (quotation omitted). The Court may, however, grant a motion for a new trial “if the evidence weighs heavily enough against the verdict that a miscarriage ’ of justice may have occurred.” Id. (quotation omitted).

In order for the Court to rule on the motions, the Court had to review all of the evidence and testimony submitted to the jury during the nine-day trial. The Government called 16 witnesses in their case in chief, Knight called 8 witnesses in his defense, and the Government called 2 rebuttal expert witnesses. Between the parties, there were approximately 300 exhibits received into evidence. All of this evidence and testimony must be viewed against the elements of the separate offenses for which the defendant was indicted. The Court will address each motion in the context of each Count charged.

A. Count 1: Conspiracy to Commit Bankruptcy Fraud

As set forth in the Court’s final instructions to the jury, to convict Knight on Count 1, conspiracy to commit bankruptcy fraud in violation of 18 U.S.C. §§ 371 and 157, the Government had to prove beyond a reasonable doubt that:

1. On or between January 1, 2008 and November 9, 2010, two or more persons reached an agreement or came to an understanding to commit bankruptcy fraud by transferring income and funds belonging to Brandon Barber to and through accounts belonging to ' the defendant and James Van Doren to hide the income and funds from creditors;

2. The defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in effect;

3. At the time the defendant joined in the agreement or understanding, he knew the purpose of the agreement or understanding; and

4. While the agreement or understanding was in effect, a person or persons who joined in the agreement knowingly committed [an overt act] for the purpose of carrying out or carrying forward the agreement or understanding.

This instruction is in line with Eighth Circuit case law on conspiracy. See, e.g., United States v. Foster, 740 F.3d 1202, 1205 (8th Cir.2014) (stating that to support a conspiracy conviction, the Government was required to show (1) an agreement between the defendant and one or more persons to commit fraud, (2) that the defendant knew of the agreement, and (3) that the defendant intentionally joined in the agreement); United States v. Dolan, 120 F.3d 856, 868 (8th Cir.1997) (“To prove a conspiracy, the government must demonstrate that an agreement existed between two or more people to commit an offense and that one or more of the conspirators acted to affect the object of the conspiracy.”). “The government must prove beyond a reasonable doubt that the defendant had knowledge of the essential object of the conspiracy.” Dolan, 120 F.3d at 868. The Eighth Circuit has further stated that a defendant’s knowledge of a conspiracy “is generally established through circumstantial evidence, and no direct evidence of an explicit agreement need be introduced to prove a conspiracy, since a tacit understanding may be inferred from circumstantial evidence.” United States v. Benitez, 531 F.3d 711, 716 (8th Cir.2008) (internal citation omitted). “Once a conspiracy has been proven, even slight evidence of a defendant’s participation is sufficient to support a conviction.” Dolan, 120 F.3d at 868 (internal quotation omitted).

In order to aid its determination of whether a conspiracy to commit bankruptcy fraud existed, as charged in Count 1, the jury was instructed as follows as to the elements of the substantive offense of bankruptcy fraud:

1. The defendant voluntarily and intentionally devised or intended to devise a scheme or plan to defraud, with the scheme being to conceal income, assets, and funds from creditors and the bankruptcy court by transferring income, assets, and funds belonging to Brandon Barber into and through accounts belonging to defendant and James Van Doren;

2. The defendant did so with the intent to defraud; and

3. The defendant made a material false or fraudulent representation, claim, or promise concerning, or in relation to, a Title 11 bankruptcy proceeding for the purpose of concealing the scheme or plan to defraud.

“Conspiracy to commit a particular substantive offense cannot exist without at least the degree of criminal intent necessary for the substantive offense itself.” United States v. Calhoun, 721 F.3d 596, 601 (8th Cir.2013) (quotation omitted) (emphasis in original). As to Count 1, the Government therefore had to show that Knight knew of and intentionally participated in an agreement the essential object of which was to intentionally devise a scheme to defraud creditors and the bankruptcy court.

The defense argues that the Court should enter a judgment of acquittal as to Count 1 because there was no evidence presented at trial that proved or tended to show that Knight contemplated bankruptcy on behalf of Brandon Barber. Knight argues that, without some, contemplation of bankruptcy, the Government could not satisfy its burden on element three of the conspiracy charge — -that at the time Knight joined in an agreement or understanding to commit bankruptcy fraud, he knew the purpose of the agreement. Knight also argues that the evidence did not show that anyone contemplated bankruptcy on behalf of Barber prior to the week before Barber filed for bankruptcy. Knight argues that the Government could not, therefore, satisfy its burden. as to element four of the conspiracy charge— that any person committed an overt act for the purpose of carrying forward an agreement to commit bankruptcy fraud.

In the alternative, the defense argues that the Court should grant a new trial as to Count 1 because the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice will occur if the Court does not grant Knight a new trial. The defense argues that the evidence was lacking in showing that (1) there was an agreement to commit bankruptcy fraud; (2) that Knight had an understanding o