United states of America v. Jeffrey J. Wilson

A grand jury indicted Jeffrey Wilson,

in a twenty-one-count indictment, with the following

offenses: (1) fraud in connection with the purchase or sale of

securities, in violation of 15 U.S.C. §§ 78j(b) and 78ff, and 17

C.F.R. § 240.10b-5 (Count 1); (2) fraud in the offer or sale of

securities, in violation of 15 U.S.C. §§ 77q(a) and 77x, and 18

U.S.C. § 2 (Count 2); (3) material false statements in required

2 No. 17-1076

Securities and Exchange Commission (“SEC”) filings, in

violation of 15 U.S.C. § 78ff and 18 U.S.C. § 2 (Counts 3–9); (4)

wrongful certification of annual and quarterly reports by a

corporate officer, in violation of 18 U.S.C. § 1350(c)(1) (Counts

10–14); (5) material false statements by a corporate officer to

an accountant, in violation of 15 U.S.C. §§ 78m(b)(5) and 78ff,

17 C.F.R. §§ 240.13b2-2(a) and 240.13b2-2(b), and 18 U.S.C. § 2

(Counts 16–17 and 19–20); and (6) false statements to

Government investigators, in violation of 18 U.S.C. § 1001

(Count 21).

A jury convicted Mr. Wilson on all charges. He then filed

a motion under Federal Rule of Criminal Procedure 29(c) for

acquittal on all counts, contending that the Government had

failed to present evidence sufficient to prove his guilt beyond

a reasonable doubt. The district court denied the motion. It

then sentenced Mr. Wilson to 120 months’ imprisonment for

Counts 1, 3–14, 16–17, and 19–20, and to 60 months’

imprisonment for Counts 2 and 21, all to run concurrently.

The court also imposed 18 months’ supervised release per

count, each to be served concurrently. The court ordered

Mr. Wilson to pay $16,468,769.73 in restitution and a $1,900

assessment.

Mr. Wilson now appeals and renews his challenge to the

sufficiency of the evidence. He contends that the Government

failed to prove beyond a reasonable doubt that he had the

requisite mens rea to commit the charged offenses. After

hearing oral argument and carefully examining the record,

we cannot accept this argument. None of Mr. Wilson’s

contentions reach the high threshold of showing that a

reasonable jury could not have found him guilty. When

viewed in the light most favorable to the prosecution, the

No. 17-1076 3

evidence adequately supports the jury’s finding that

Mr. Wilson acted knowingly and willfully when making false

statements to investors, regulators, an outside accountant,

and Government agents. It also supports the reasonable

inference that Mr. Wilson was aware of and participated in a

fraudulent tax scheme called “Alchemy.” Accordingly, we

affirm the judgment of the district court.

I

BACKGROUND

A. Facts1

Mr. Wilson was the Director, Chairman of the Board,

President, and Chief Executive Officer of a public company

called Imperial Petroleum, Inc. (“Imperial”) from May 2010,

to November 2011. In May 2010, Imperial acquired e-Biofuels,

LLC (“e-Bio”), a biofuel company owned previously by

Craig Ducey, Chad Ducey, and Brian Carmichael. Craig and

Chad are brothers; Carmichael is related to them by marriage.

A third brother, Chris Ducey, handled transportation logistics

for e-Bio.2

Prior to its acquisition by Imperial, e-Bio had developed a

fraud scheme called Alchemy. It involved purchasing

biodiesel from a third party and then reselling it to customers

as though it had been produced originally by e-Bio. This

scheme was profitable because it allowed the company to take

1 The facts are based on the trial record viewed in the light most favorable

to the Government. United States v. Johnson, 874 F.3d 990, 998 (7th Cir.

2017).

2 To avoid confusion, we refer to the Ducey brothers by their first names.

4 No. 17-1076

advantage of government incentives for renewable-energy

production without actually expending production costs. The

relevant incentives are renewable identification numbers

(“RINs”) and the blender’s tax credit.

RINs are essentially labels used by the Environmental

Protection Agency (“EPA”) to track renewable fuel

production and consumption. Biodiesel producers can

generate and attach a certain number of RINs to each gallon

of biodiesel that they manufacture, using EPA-approved

procedures, at EPA-registered facilities.3 Producers can sell

this RIN-valued fuel to petroleum fuel refiners and importers.

These customers must obtain and retire a certain number of

RINs in order to meet annual regulatory obligations.4 This

system creates a market for RIN-valued biodiesel—i.e.,

biodiesel that has not yet had its RINs retired.

The blender’s tax credit is a $1/gallon credit; it is granted

to the taxpayer that first blends biodiesel with any amount of

petroleum diesel. Before biodiesel is blended, it is known as

B100, which indicates that it is 100 percent biodiesel. Biodiesel

is often blended with a small amount of petroleum diesel.

This process results in a product known as B99, which is

3 See 40 C.F.R. § 80.1126.

4 See 40 C.F.R. § 80.1127. At the end of each compliance year, refiners and

importers submit evidence of the RINs they obtained that year. They can

apply those RINs to meet their annual obligations, to make up for the prior

year’s deficit, or to credit their account for the next compliance year. See

Envtl. Prot. Agency, Renewable Fuel Standard Program: Overview for

Renewable Fuel Standard, https://www.epa.gov/renewable-fuel-standardprogram/

overview-renewable-fuel-standard (last visited Dec. 21, 2017).

No. 17-1076 5

approximately 99 percent biodiesel and, more importantly,

already has been used to claim the tax credit.

Because of these two separate government incentives,

RIN-valued B100 is more valuable to biodiesel purchasers

than RIN-less B99. The conspirators behind Alchemy profited

by purchasing RIN-less B99 and then reselling it as

RIN-valued B100. To avoid suspicion, e-Bio used a third-party

company, Caravan Trading (“Caravan”), as a middleman.

Caravan was owned by Joseph Furando. Caravan would

purchase RIN-less B99 at low cost and then resell it to e-Bio

along with fake invoices describing the biodiesel as feedstock

(e.g., soybean oil or chicken fat). Feedstock is used to create

biodiesel, so e-Bio would pretend that it had used this

“feedstock” to produce B100 in its own plant. E-Bio generated

RINs for this fake B100, which was actually B99 with no

legitimate RIN value. The company profited by selling this

product at the price of RIN-valued B100.

To carry out this plan, e-Bio hired truck drivers to pick up

the RIN-less B99 from Caravan’s fuel terminals and deliver it

to the e-Bio plant. There, it was pumped into storage tanks

and later transferred to another truck for delivery to e-Bio’s

customers. E-Bio furnished drivers delivering this product

with paperwork reciting that the fuel they were carrying was

RIN-valued B100, produced at the e-Bio plant. To cut down

transportation costs, e-Bio eventually had truck drivers carry

the biodiesel directly from Caravan’s fuel terminals to e-Bio’s

customers. The company would fax fake paperwork,

including false bills of lading, to the drivers while they were

en route in order to make it appear as if the fuel had been

produced at (and delivered from) the e-Bio plant. These

6 No. 17-1076

deliveries were called “Ghost Loads,” because the drivers of

those loads were never seen at the e-Bio plant.

While negotiating the acquisition of e-Bio, Craig informed

Mr. Wilson that the e-Bio plant was not producing biodiesel

from feedstock and that it was purchasing fuel from Caravan.

Shortly after Imperial acquired e-Bio, Craig emailed

Mr. Wilson a spreadsheet entitled “e-Biofuels make versus

buy cost 6-16-2010.xls” (the “Make vs. Buy spreadsheet”).5

This spreadsheet compared the cost of making biodiesel from

scratch versus the profit of buying it from Caravan. At one

point, Mr. Wilson asked Craig how e-Bio could increase its

output under the latter option, and Craig told Mr. Wilson that

e-Bio’s main customer would purchase as much biodiesel as

e-Bio could sell.

The parties disputed at trial the degree of Mr. Wilson’s

involvement in e-Bio’s business. The evidence showed that

the Duceys continued to oversee many of e-Bio’s daily

operations after the Imperial acquisition, and Mr. Wilson

maintained that he was largely unaware of e-Bio’s day-to-day

operations. According to him, he purchased the company

because it came with a self-sufficient group of managers.

There was, however, significant evidence about Mr. Wilson’s

involvement in and awareness of e-Bio’s activities, as set out

in the following paragraphs.

A few months after the acquisition, Mr. Wilson exchanged

emails with his son and Chad, both of whom were working at

the e-Bio plant. Chad stated that e-Bio was not producing any

glycerin, a necessary by-product of transesterification (the

process that converts feedstock into biodiesel). Mr. Wilson

5 Tr. Ex. 3 (Make vs. Buy spreadsheet).

No. 17-1076 7

replied with his understanding that a lack of glycerin meant

e-Bio was not producing biodiesel from feedstock. His son

confirmed this conclusion. Around the same time, Mr. Wilson

told the managers of Caravan that he wanted to increase their

business together.

In November 2010, Imperial filed its first annual report

with the SEC. In that report, Mr. Wilson represented that

e-Bio manufactured millions of gallons of biodiesel from

feedstock, that it produced glycerin as a by-product of this

production process and that it took advantage of RINs that

are generated when biofuel is produced. The following year,

Mr. Wilson filed another annual report, three quarterly

reports, and two current reports with the SEC. All of these

documents included the same or similar statements

representing that e-Bio produced biofuel from feedstock

rather than buying and reselling biodiesel produced by a

third party. Mr. Wilson certified the accuracy of the annual

and quarterly reports even though they included false

statements about e-Bio’s production process and output.

Mr. Wilson communicated similar statements to Imperial’s

outside accountant and its investors.

During Mr. Wilson’s tenure as president of Imperial, e-Bio

increased its fraudulent fuel sales substantially. It was able to

increase its output by undertaking more and more Ghost

Loads, especially in the Houston area.6 The Government’s

witnesses testified that Mr. Wilson knew of these Ghost Loads

and wanted to increase them by sending more drivers to

6 These Texas Ghost Loads were uniquely risky because the trucks never

traveled out of the state; they picked up fuel from terminals in Houston

and delivered it to customers in Houston, even though the biodiesel was

purportedly produced at e-Bio’s plant in Indiana.

8 No. 17-1076

Texas. Mr. Wilson also had discussions about ways to

mitigate the risks posed by the Ghost Loads. For instance, he

favored bribing e-Bio’s truck drivers so they would not

expose the true nature of their deliveries, and he agreed to

purchase a fax machine to transmit falsified paperwork

directly to the drivers rather than by using an intermediary.

He also was present during discussions about removing

e-Bio’s name from the trucks to deflect any suspicions about

the deliveries.

During one audio-recorded meeting, Furando explained

that the conspirators referred to the entire scheme as

Alchemy. He also said: “Big oil does not care. … The RINs

you guys generate, they don’t care if they’re real or not. They

just want an obligation met. And they want to be done with

it.”7 The parties dispute whether Mr. Wilson attended this

meeting. During trial, three witnesses testified that they were

at the meeting along with Mr. Wilson. A fourth witness

identified a voice in the recording as that of Mr. Wilson;

Mr. Wilson’s brother disputed that identification. The jury

had separate exemplars of Mr. Wilson’s voice to compare

with the recording.

In summer 2011, a hedge fund, Platinum Partners

(“Platinum”), considered investing in Imperial.

David Steinberg, an investment professional at Platinum,

evaluated Imperial as a potential investment. Ashley Player,

a renewable energy consultant whom Platinum had hired to

conduct due diligence on Imperial, assisted him. As part of

her investigation, Player inquired as to how e-Bio’s

15-million-gallon-per-year plant could produce 25–30 million

7 Tr. Ex. 148 (transcript of recorded meeting on July 27, 2011), at 2–3.

No. 17-1076 9

gallons of biodiesel per year. Chad told her that about half of

e-Bio’s output came from reprocessing “off-spec” biodiesel

(i.e., biodiesel that fails to meet one or more industry

specifications). The other 15 million gallons, he told her, were

produced from feedstock. Platinum Partners did not invest in

Imperial.

Around this same time, Mr. Wilson was attempting to

activate the production equipment at the e-Bio plant.

Investors were requesting to visit the plant, but Mr. Wilson

was not willing to host them until the plant could process

genuine feedstock. Mr. Wilson ran into difficulties getting the

plant up and running, and he eventually resigned from his

position.

During Imperial’s ownership of e-Bio, the subsidiary

generated 99 percent of Imperial’s revenues. Overall, e-Bio

resold over 35 million gallons of biodiesel and realized more

than $55 million in profits as a result of Alchemy. As e-Bio

generated more and more revenue, the value of Imperial’s

stock rose as well. Mr. Wilson and his wife transferred

hundreds of thousands of Imperial shares during this time,

and Mr. Wilson issued more than $1 million in Imperial

shares to different companies that he controlled. He also paid

off more than $5 million in company debts using Imperial

stock and wrote more than $100,000 in company checks to

himself. These payments were not disclosed in Imperial’s SEC

filings and run counter to Mr. Wilson’s statements in SEC

reports that he had deferred his salary. When the scheme fell

apart, Imperial’s stock lost almost all of its value, and

investors lost more than $18 million.

In June 2012, Government agents interviewed Mr. Wilson

as part of an investigation into whether Imperial’s SEC filings

10 No. 17-1076

contained false statements about e-Bio’s production of

biodiesel. When confronted with questions from

investigators, Mr. Wilson repeated the explanation that Chad

had given to Ashley Player: he told them that at least half of

e-Bio’s output was produced from feedstock at the company’s

EPA-registered plant, and that the other half was made by

reprocessing off-spec biodiesel. Mr. Wilson also told the

investigators that: (1) he never compared the cost of off-spec

biodiesel to feedstock; (2) he did not compare the costs of

reprocessing off-spec methyl ester to making biodiesel from

feedstock; and (3) he did not know if reprocessing off-spec

methyl esters was more profitable than making biodiesel from

feedstock.

B. District Court Proceedings

In September 2013, the Government filed a twenty-onecount

indictment alleging that Mr. Wilson had committed the

following offenses: fraud in the purchase or sale of securities

(Count 1); fraud in the offer or sale of securities (Count 2);

material false statements in required SEC filings8 (Counts 3–

9); wrongful certifications of annual and quarterly reports9

(Counts 10–14); material omissions and false statements to a

public company’s independent accountant10 (Counts 16–17

8 Specifically, Imperial’s Annual Reports for 2010 and 2011, its Quarterly

Reports for the first three quarters of 2011, and its Current Reports for

September and October of 2011.

9 The same Annual and Quarterly Reports as above.

10 Specifically, omissions and statements related to Imperial’s annual

audits in 2010 and 2011.

No. 17-1076 11

and 19–20); and false statements to Government investigators

(Count 21). Craig was charged as a co-defendant.11 He

pleaded guilty prior to the trial and testified against

Mr. Wilson. Chad, Chris, Carmichael, Furando, and Katirina

Pattison (the original Alchemy conspirators) were all charged

separately and also pleaded guilty. During Mr. Wilson’s trial,

the Government presented testimony from multiple

participants in the Alchemy scheme, including Craig, Pattison

(the second in charge of Caravan), and Alexander Chepurko

(an employee of Caravan). The Government also presented

testimony from Scott Hlavacek, an accountant for the SEC.

Mr. Wilson did not testify.

The district court conducted an eight-day jury trial

between July 11, 2016, and July 20, 2016. At the close of

evidence, Mr. Wilson filed a motion for judgment of acquittal

under Federal Rule of Criminal Procedure 29(a). After the

court denied the motion, the jury found him guilty on all

counts.

After the verdict, Mr. Wilson filed a Rule 29(c) motion for

a renewed judgment of acquittal.12 He argued that the

Government had failed to adduce sufficient evidence to prove

beyond a reasonable doubt that he had the requisite mens rea

to commit the charged offenses. Although he did not dispute

the existence of the Alchemy scheme, Mr. Wilson claimed that

he was not aware of it at the time of his alleged offenses.

11 Counts 15 and 18 charged only Craig.

12 The Defendant’s motion cited Rule 29(a), but the district court properly

treated it as a Rule 29(c) motion. Rule 29(a) governs motions for judgment

of acquittal made before a case is submitted to a jury, whereas Rule 29(c)

governs similar motions filed after a verdict of guilty.

12 No. 17-1076

Therefore, he argued, the Government could not prove that

he possessed the knowledge needed to convict him on any

counts. The district court denied the motion for acquittal.

The court sentenced Mr. Wilson in December 2016. On

Counts 1, 3–14, 16–17, and 19–20, it imposed concurrent

sentences of 120 months’ imprisonment. On Counts 2 and 21,

the court imposed concurrent sentences of 60 months’

imprisonment. These latter sentences were to run

concurrently with the 120-month sentences. The court also

ordered $16,468,769.73 in restitution and a $1,900 assessment.

Mr. Wilson timely appealed.

II

DISCUSSION

Mr. Wilson asks that we review the district court’s denial

of his motion for judgment of acquittal. The principles that

govern our review are well-settled. We review the trial court’s

ruling on a Rule 29 motion for a judgment of acquittal de

novo. United States v. Doody, 600 F.3d 752, 754 (7th Cir. 2010).

Like the district court, we ask “whether at the time of the

motion there was relevant evidence from which the jury could

reasonably find [the defendant] guilty beyond a reasonable

doubt, viewing the evidence in the light most favorable to the

Government.” United States v. Blasco, 581 F.2d 681, 684 (7th

Cir. 1978) (alteration in original) (internal quotation marks

omitted). We must bear in mind that “it is the exclusive

function of the jury to determine the credibility of witnesses,

resolve evidentiary conflicts, and draw reasonable

inferences.” Id.

No. 17-1076 13

We have framed this inquiry as “whether after viewing

the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United

States v. Roman, 728 F.2d 846, 857 (7th Cir. 1984) (emphasis in

original) (internal quotation marks omitted). When a

defendant has introduced evidence in his own defense at trial,

we examine the evidence as a whole, including that presented

by the defendant. See United States v. Fearn, 589 F.2d 1316, 1321

(7th Cir. 1978). In a case that hinges on circumstantial

evidence, we must not permit a verdict based “solely on the

piling of inference upon inference,” but we also must not

“rend the fabric of evidence and examine each shred in

isolation; rather, the reviewing court must use its experience

with people and events in weighing the chances that the

evidence correctly points to guilt against the possibility of

innocent or ambiguous inference.” Roman, 728 F.2d at 858

(internal quotation marks omitted).

Mr. Wilson maintains that he was unaware of the

Alchemy scheme and therefore lacked the requisite mens rea

to be convicted on any charges. In response, the Government

notes that it did not need to prove that Mr. Wilson knew about

the entire Alchemy scheme (specifically, the double

incentives that e-Bio generated through falsified paperwork)

in order to prove his guilt. Rather, it needed to prove only that

he knowingly made false statements to regulators, investors,

investigators, and an outside accountant. The Government

also contends that it presented sufficient evidence showing

that Mr. Wilson knew about and directly participated in the

Alchemy scheme.

14 No. 17-1076

Upon examination of the record, we must conclude that

Mr. Wilson has failed to overcome the very significant hurdle

that faces a defendant on a Rule 29(c) motion. See United States

v. Tucker, 737 F.3d 1090, 1092 (7th Cir. 2013) (discussing the

high bar that faces an appellant raising an insufficiency

challenge). Viewed in the light most favorable to the

prosecution and without questioning the jury’s credibility

determinations, the evidence is more than sufficient to sustain

a conviction on all counts. We now turn to a specific

examination of each of the charges.

1. Counts 1 through 14

Counts 1 through 14 all require the Government to prove

essentially the same thing: that Mr. Wilson knowingly and

willfully made untrue statements of material fact—or omitted

material facts in a manner that was misleading—in the

purchase, offer, or sale of securities and in required SEC

filings. Mr. Wilson has not contested the other elements of

charges 1 through 14. In support of the district court’s ruling,

the Government invites our attention to trial testimony and

exhibits indicating that Mr. Wilson knew the e-Bio plant was

not manufacturing biodiesel but rather buying it from a third

party. If Mr. Wilson indeed knew these facts, then his

contrary statements to Imperial investors, accountants, and

the SEC were materially false.

As the district court noted, the evidence at trial established

that Mr. Wilson made the following representations: (1) e-Bio

manufactured millions of gallons of biodiesel at its own plant;

(2) the e-Bio plant used transesterification to convert raw

feedstock into biodiesel; (3) the transesterification process

No. 17-1076 15

required e-Bio to purchase methanol and raw feedstock; and

(4) e-Bio produced and sold glycerin, a necessary by-product

of transesterification. Mr. Wilson does not challenge whether

he made these representations or whether they are false.

Instead, he claims ignorance in order to challenge the

“knowing” and “willful” aspect of his false statements.

To show that Mr. Wilson knew these representations were

false and thus acted “knowingly and willfully,” the

Government points, in part, to the following evidence:

 Craig’s testimony that prior to the Imperial acquisition

he told Mr. Wilson the plant was not producing

biodiesel.

 The Make vs. Buy spreadsheet, which Craig emailed to

Mr. Wilson illustrating that it was more profitable to

buy and resell biodiesel rather than manufacture it

from feedstock.

 Craig’s testimony that he discussed the Make vs. Buy

spreadsheet with Mr. Wilson, who inquired about

increasing output of the “bottom product” (i.e., the

product resulting from buying and reselling biodiesel).

 Mr. Wilson’s multiple visits to the e-Bio plant, where

nothing was hidden from him, including the dormant

state of the plant’s production equipment or the

deliveries of biodiesel to and from storage tanks.

 Chepurko’s testimony that Mr. Wilson told Furando

the e-Bio plant was not operating, and Pattison’s

testimony that she and Mr. Wilson discussed the

difficulties of getting it operational again.

 Mr. Wilson’s receipt of an email about the lack of

16 No. 17-1076

glycerin produced at the plant and his recognition in

response that e-Bio must not have been making its own

biodiesel.

In the face of this evidence, Mr. Wilson submits that he did

not know about the Alchemy scheme and that his false

representations were made in good faith. He emphasizes the

undisputed fact that the Alchemy cover-up started before

Imperial acquired e-Bio and maintains that “common sense

dictates[ that] the Duceys had no incentive to disclose the

Alchemy scheme to” him.13 Mr. Wilson also compares his

asserted ignorance with the knowledge of Scott Hlavacek, an

SEC accountant who spent three years tracking and analyzing

e-Bio’s Ghost Loads to uncover the fraud. Mr. Wilson argues

that he could not have discovered the fraud on his own, given

his lack of knowledge about the industry and lack of access to

the documents used by Hlavacek.

None of these arguments show that the Government’s

evidence was insufficient as a matter of law. Although one

can argue that the Duceys would not have disclosed their

fraud to Mr. Wilson, a reasonable jury could have found

otherwise. The jury might have concluded, for example, that

the Duceys disclosed the illegal venture to Mr. Wilson

because they were sure that he eventually would discover it

on his own and thought it better to convince him to join their

scheme rather than report it. Mr. Wilson’s argument about

Hlavacek is also deficient: the prosecution did not suggest

that Mr. Wilson discovered the fraud through a longitudinal

investigation like that conducted by Hlavacek. Rather, the

Government suggested that Wilson was told about the

13 Appellant’s Br. 23.

No. 17-1076 17

scheme directly by co-conspirators. Therefore, it does not

matter if Mr. Wilson “did not have the time or the resources

to conduct the same analysis [as] Hlavacek.”14

The Government also presented evidence that Mr. Wilson

knew about and directly participated in the Alchemy scheme.

Specifically, the Government points to an audio tape of a

secretly recorded meeting during which Furando explained

that the scheme is called Alchemy and that “Big oil does not

care” if the RINs are real so long as its regulatory obligations

are met.15 Multiple witnesses testified that Mr. Wilson was

present at this meeting and identified a voice on the tape as

his. And the jury was able to compare the tape recording to a

separate exemplar of Mr. Wilson’s voice. Given the

reasonable inferences that could be drawn from this evidence,

it was not irrational for the jury to conclude that Mr. Wilson

was aware of the Alchemy scheme.

The Government also identifies evidence that Mr. Wilson

knew about and actively tried to cover up the Ghost Loads. It

points to testimony that Mr. Wilson had discussions with

Craig and Furando about the Ghost Loads and ways to

mitigate the risks by removing e-Bio’s name from the trucks,

bribing truck drivers, and providing a fax machine for the

drivers to receive falsified documents. The Government also

notes a number of documents in Mr. Wilson’s possession that

evidenced the Ghost Loads, such as falsified bills of lading,

invoices that e-Bio issued to Caravan, and spreadsheets

analyzing the profitability of Ghost Loads. Although this

documentary evidence does not necessarily conflict with

14 Id. at 25.

15 Tr. Ex. 148, at 2–3.

18 No. 17-1076

Mr. Wilson’s claim that he was ignorant of its incriminating

nature, it does provide additional evidence from which a

rational jury could infer that Mr. Wilson knew about the

Ghost Loads and the broader scheme.

2. Counts 16–17 and 19–20

Mr. Wilson also challenges the sufficiency of the

Government’s evidence showing that he knowingly and

willfully made materially false or misleading statements to,

or omitted material facts from, an accountant in connection

with the preparation and filing of reports for the SEC. In

particular, he challenges the Government’s contentions that

he lied when he told John Samyn, an accountant hired by

Imperial, that (1) he was unaware of any allegations of fraud

or suspected fraud affecting Imperial or its subsidiaries; (2) he

had provided Samyn with all the records regarding the

business of Imperial and its subsidiaries; and (3) he had

provided Samyn with all minutes and summaries of meetings

by Imperial’s Board of Directors.

Mr. Wilson addresses only the first contention. He claims

that he did not hide any allegations of fraud or suspected

fraud from Samyn. Specifically, Mr. Wilson emphasizes that

he did not receive a written report from Ashley Player, the

outside consultant hired by Platinum, questioning the

validity of the RINs generated by e-Bio. Absent such a report,

Mr. Wilson argues, he could not have disclosed its contents to

Samyn.

Although a written report would have enhanced the

probity of the Government’s evidence, it hardly precludes the

reasonable conclusion that Mr. Wilson knew about Player’s

No. 17-1076 19

suspicions and failed to disclose them to Samyn. The

Government provided adequate evidence for the jury to

conclude that Mr. Wilson was aware of such third-party

suspicions. It cited, for instance, an email between Mr. Wilson

and Steinberg, an investment professional for Platinum, in

which Mr. Wilson recognized Player’s concern that e-Bio’s

products were not eligible for RINs.16

Mr. Wilson also notes that Steinberg told him that

Platinum was not accusing Imperial of criminal conduct.

Again, although such an accusation would have enhanced the

Government’s case, its absence does not overcome the other

evidence that Mr. Wilson knew about Player’s suspicions. The

Government did not need to establish definitely that

Steinberg accused Imperial of fraud; it merely needed to

present evidence from which a reasonable jury could

conclude that Mr. Wilson knew about suspicions of fraud and

did not disclose them to Samyn.

Finally, Mr. Wilson argues that he was not required to

disclose to Samyn a particular allegation, made by an outside

consultant, that the Ducey brothers were selling fuel at

below-market prices to a former principal of e-Bio.

Mr. Wilson argues that he was not required to disclose this

allegation to Samyn because he had looked into it and had

16 In this particular email exchange, Mr. Wilson refers to the “off[-]spec

products [that e-Bio was] purchasing as feedstocks.” Tr. Ex. 68, at 2.

Off-spec biodiesel is different from the RIN-less B99 that e-Bio was

actually purchasing from Caravan; however, as Player explained in her

testimony, it is still odd for a biodiesel production plant to use off-spec

fuel when generating RIN-valued B100. See R.168 at 232–34 (Trial Tr. vol.

3 at 617–19).

20 No. 17-1076

determined that it was baseless. However, the evidence

shows that Samyn asked Mr. Wilson about “any allegations of

fraud or suspected fraud”—not just well-supported

allegations.17 The Government also presented an August 2011

communication between Mr. Wilson and Imperial’s Board of

Directors, in which Mr. Wilson detailed the allegations above.

Given Mr. Wilson’s recognition that the allegations

warranted a report to the Board, the jury reasonably could

have concluded that he knowingly failed to disclose them to

Samyn in the fall of 2011.

Furthermore, aside from broad claims that he was

unaware of Alchemy, Mr. Wilson does not challenge the

Government’s evidence that he failed to give Samyn all of

Imperial’s pertinent business records and board meeting

minutes. For instance, the Government introduced minutes

from an August 2011 board meeting where Mr. Wilson

discussed the allegations of fraudulent transactions between

e-Bio and a former principal. In conjunction with those

minutes, the Government also introduced a letter from

October 2011, in which Mr. Wilson certified to Samyn’s

accounting firm that he had provided it with all minutes from

Imperial’s director meetings. This documentation provided

further evidence from which the jury could infer that

Mr. Wilson acted knowingly and willfully when making

materially false statements to an outside accountant.

17 Tr. Ex. 85 (Imperial Fraud Risk Information Form dated September 5,

2011), at 3 (emphasis added); see also Tr. Ex. 104 (Imperial Management

Certification Letter dated October 21, 2011), at 2 (representing that

Imperial had “no knowledge of any fraud or suspected fraud”).

No. 17-1076 21

3. Count 21

The last count charged Mr. Wilson with knowingly and

willfully making false statements to Government agents, in

violation of 18 U.S.C. § 1001. The Government identified three

specific statements made by Mr. Wilson during an interview

by federal investigators on May 29, 2012: (1) that he never

compared the cost of off-spec biodiesel to feedstock; (2) that

he did not compare the cost of reprocessing off-spec methyl

ester to making biodiesel from feedstock; and (3) that he did

not know if reprocessing off-spec methyl ester was more

profitable than making biodiesel from feedstock. Mr. Wilson

does not challenge whether he made these statements; rather,

he argues that they were not technically false.

To prove the falsity of these statements, the Government

primarily relies on the Make vs. Buy spreadsheet that

Mr. Wilson received from Craig. Mr. Wilson does not

challenge whether the contents of the spreadsheet include the

comparisons above. He instead argues that his receipt of the

spreadsheet does not prove that he actually read it or

“personally contemplated the comparisons.”18 He also claims

that the Government did not prove that he remembered

receiving the spreadsheet at the time he was interviewed

because the Government did not ask him specifically about

receiving it.19 Mr. Wilson relies upon our opinion in United

18 Appellant’s Br. 14.

19 Mr. Wilson also points out that “the price of feedstock was variable, so

it is entirely possible there were times when it was more profitable to make

biodiesel from feedstock than reprocessing off-spec methyl ester.” Id. at

36. Although this may be true, it does not conflict with the Government’s

evidence that Mr. Wilson compared the profitability of the two processes.

22 No. 17-1076

States v. Rahman, 805 F.3d 822 (7th Cir. 2015), to argue that,

technically, he did not lie.

In Rahman, a restaurant owner was convicted of falsely

telling a Government agent that his laptop, which contained

business records, was in his restaurant when the building

burned down. 805 F.3d at 837. Because the Government later

uncovered a laptop without business records at the

defendant’s home, the jury concluded that the defendant had

lied. We reversed the conviction on appeal, noting the

ambiguity in the Government’s question and resultant

insufficiency of the evidence showing that the defendant had

lied. Specifically, the Government had failed to ask whether

the defendant owned multiple laptops and, if so, which ones

were in his restaurant during the fire. It was not unlikely that

the defendant had a laptop with business records at work and

another laptop for personal use at home. Therefore, we held

that the Government did not establish beyond a reasonable

doubt that, when questioned by the agents, the defendant had

been referring to the laptop that was later found in his home.

Id. at 839.

Mr. Wilson attempts to compare his situation to that of the

defendant in Rahman. He argues that the Government should

have asked more specific questions, such as whether he

analyzed and recalled the cost comparisons reflected in the

Make vs. Buy spreadsheet. But the Government’s inquiries

here did not elicit any ambiguity comparable to the ambiguity

in Rahman. Even if Mr. Wilson did not personally run the

analysis measuring the individual costs of making versus

Indeed, a jury could conclude that variable prices are precisely the kind of

factor that would motivate a business to run cost comparisons.

No. 17-1076 23

buying/reselling biodiesel, the jury reasonably could have

concluded that, using this specific spreadsheet, he

“compared” the two processes. This conclusion was

supported by ample circumstantial evidence. See United States

v. Trudeau, 812 F.3d 578, 590 (7th Cir. 2016) (noting that

circumstantial evidence may be used to establish a

defendant’s state of mind), cert. denied, 137 S. Ct. 566 (2016). In

addition to the Make vs. Buy spreadsheet, the Government

presented testimony from Craig that he discussed the

contents of the spreadsheet with Mr. Wilson and that

Mr. Wilson asked him how to obtain more gallons of the

“bottom product” (i.e., the product obtained via the buy/resell

scheme).20

Finally, Mr. Wilson challenges the materiality of his false

statements but offers very little by way of support. He

emphasizes that the investigators failed to ask him whether

he recalled the Make vs. Buy spreadsheet during his

interview. Mr. Wilson seems to argue that because the

investigators did not call his attention to the spreadsheet, his

“alleged statements in the interview were not connected to

the spreadsheet” and thus were not material.21

This argument misconstrues the concept of materiality.

The true test for materiality under § 1001 is whether the

statement in question had a “natural tendency to influence, or

[was] … capable of influencing” the federal agency. United

States v. Dick, 744 F.2d 546, 553 (7th Cir. 1984); United States v.

DiFonzo, 603 F.2d 1260, 1266 (7th Cir. 1979). Mr. Wilson’s

statements to Government agents clearly had a “natural

20 R.169 at 215 (Trial Tr. vol. 4 at 896).

21 Appellant’s Br. 38.

24 No. 17-1076

tendency” to influence their investigation of Imperial. The

agents were investigating whether the company’s

representations to the SEC about its production of biodiesel

were true. If Mr. Wilson, as the CEO of Imperial,

acknowledged that he had compared the costs of producing

biodiesel to the costs of buying and reselling it, that disclosure

certainly would have affected the investigation. One of the

investigators confirmed as much in her testimony.22

Therefore, the jury was entitled to conclude that Mr. Wilson’s

statements were material.

CONCLUSION

Mr. Wilson’s claim that the Government did not present

evidence sufficient to support his conviction fails to overcome

the substantial burden facing a defendant who challenges a

jury’s verdict. He maintains that he was unaware of the

Alchemy scheme and that he made any false statements in

good faith. His arguments merely demonstrate that the jury

could have drawn contrary inferences, but that is not enough

to overturn his conviction.

The Government has pointed to ample circumstantial

evidence that Mr. Wilson knew about the Alchemy scheme,

or at least knew that e-Bio was not producing its own

biodiesel through transesterification. Based on this evidence,

a rational jury could have concluded that Mr. Wilson

22 R.171 at 75–76 (Trial Tr. vol. 6 at 1270–71) (testimony by Lorna Eagle, a

special agent for the Internal Revenue Service, that truthful answers by

Mr. Wilson would have been important to the Government’s investigation

and would have demonstrated “his knowledge of what was going on and

his motive or the motive of the plant”).

No. 17-1076 25

knowingly and willfully told false statements to investors,

accountants, investigators, and the SEC. It was up to the jury

to evaluate the witnesses’ credibility, weigh the evidence, and

draw reasonable inferences. That it did, and we will not

disturb its finding.

Accordingly, the judgment of the district court is affirmed.

AFFIRMED