United States of America v. Harry Herbert Wagner, Jr.

*The Honorable Gordon J. Quist, United States District Judge for the
W estern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0311P (6th Cir.)
File Name: 04a0311p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HARRY HERBERT WAGNER,
JR.,
Defendant-Appellant.
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No. 03-4313
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 02-00803—James G. Carr, District Judge.
Argued: June 9, 2004
Decided and Filed: September 13, 2004
Before: BOGGS and MOORE, Circuit Judges; QUIST,
District Judge.*
2 United States v. Wagner No. 03-4313
_________________
COUNSEL
ARGUED: Harland M. Britz, BRITZ & ZEMMELMAN,
Toledo, Ohio, for Appellant. Thomas A. Karol, ASSISTANT
UNITED STATES ATTORNEY, Toledo, Ohio, for Appellee.
ON BRIEF: Harland M. Britz, BRITZ & ZEMMELMAN,
Toledo, Ohio, for Appellant. Thomas A. Karol, ASSISTANT
UNITED STATES ATTORNEY, Toledo, Ohio, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Defendant-
Appellant Harry Herbert Wagner, Jr. (“Wagner”), a real-estate
developer in northern Ohio, appeals his conviction for
fraudulently concealing property from a bankruptcy trustee in
violation of 18 U.S.C. § 152(1) and filing a false document in
a bankruptcy proceeding in violation of 18 U.S.C. § 157(2).
Wagner was indicted in November 2002 after allegedly
making false statements to the United States Bankruptcy
Court for the Northern District of Ohio during a Chapter 7
conversion hearing and changing the locks on several
properties belonging to his estate, which the trustee was
attempting to sell. A jury convicted Wagner in April 2003,
and the United States District Court for the Northern District
of Ohio sentenced Wagner to six months’ imprisonment. On
appeal, Wagner challenges his conviction, arguing that he did
not “conceal” property by changing the locks and that he did
not commit bankruptcy fraud because any falsifications he
may have made did not deceive the bankruptcy court.
Additionally, Wagner asserts that he was deprived of his
constitutional right to the effective assistance of counsel and
that the district court erred by not permitting expert evidence
regarding Wagner’s alleged hearing problems. Because there

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No. 03-4313 United States v. Wagner 3
is no merit to Wagner’s various arguments, we AFFIRM
Wagner’s conviction.
I. FACTUAL HISTORY AND PROCEDURE
The factual and procedural history of Wagner’s appeal can
be divided into three segments: 1) the events leading up to
and the declaration of Chapter 11 bankruptcy; 2) the
bankruptcy court proceedings; and 3) Wagner’s indictment,
trial, and conviction.
A. Wagner’s Declaration of Bankruptcy and Subsequent
Actions
In the mid-1970s, Wagner developed Edgewood Estates, a
three-hundred acre subdivision in Lima, Ohio containing 156
rental units. Wagner also built six “smart houses,” which
were outfitted with electronic devices that automated various
household chores. At some point after 1997, Wagner began
to have difficulty with his multiple mortgage obligations, and
in 1999, Wagner ceased paying several of his mortgagees.
These lenders commenced foreclosure proceedings against
most of Wagner’s properties. At one point, Wagner was
juggling over seventy-five separate foreclosure proceedings.
Seeking a way to forestall the foreclosures, Wagner
contemplated declaring bankruptcy. Wagner obtained a do-it-
yourself bankruptcy kit and filed a pro se Chapter 11
bankruptcy petition on April 26, 2002, which automatically
stayed the foreclosure proceedings. Shortly after the filing of
the Chapter 11 petition, the United States Trustee’s Office
contacted Wagner. Because debtors serve as their own
trustees in Chapter 11 proceedings, it is standard practice for
the Trustee’s Office to hold an informal meeting with the
debtor to advise the debtor about the timely filing of financial
reports, the fiduciary duties incumbent upon the debtor, and
the prohibition against selling or further encumbering
disputed assets without prior approval. The Trustee’s Office
asked Wagner to attend such a meeting. In a bizarre letter,
4 United States v. Wagner No. 03-4313
Wagner refused to conference with the Trustee’s Office,
asking, “Are you one of the good old boys and are you
bonded?” and stating, “If you persist on this meeting, that I
am not going to attend, I will put this in a letter that I am
writing [to the bankruptcy judge] that you are not following
the due process of law in bankruptcy.” Joint Appendix
(“J.A.”) at 603 (Letter from Wagner, 05/06/02). In several
instances during the early part of May 2002, Wagner
repeatedly refused to meet with the Trustee’s Office and
failed to produce financial documents required by the court.
As a result, on May 13, 2002, the Trustee’s Office filed a
motion to convert Wagner’s Chapter 11 bankruptcy petition
to a Chapter 7 petition, under which Wagner would no longer
serve as his own trustee. The Bankruptcy Court scheduled a
hearing to consider this motion on June 3, 2002.
During the interlude, Wagner visited a branch office of the
United States Small Business Administration (“SBA”) in
Columbus, Ohio on May 22, 2002. Wagner requested a loan
application, but the SBA officials informed Wagner that the
SBA does not distribute loan applications because the SBA
does not make direct loans. Indeed, the SBA works primarily
with institutional lenders, such as banks, to guarantee loans,
and the application for SBA assistance is usually completed
by the financial institution making the loan. One of the SBA
officials attempting to assist Wagner suggested that Wagner
explore the SBA’s website, which fully described the SBA’s
program and its role in making loans. Wagner responded that
he understood that the SBA did not make direct loans and that
he had already looked at the website, but he persisted in
asking for the loan forms, and eventually the SBA officials
relented.
On Friday, May 24, 2002, and with neither authorization
for a loan from the SBA nor approval from the Trustee’s
Office to further encumber property belonging to his estate,
Wagner filed a mortgage against several of his properties.
Wagner recorded with the Allen County Recorder’s Office a
mortgage which listed close to ninety-five properties and

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No. 03-4313 United States v. Wagner 5
included Wagner and his wife as mortgagors. Wagner
attached a loan note to the mortgage, which claimed that the
SBA had granted Wagner a $10.75 million loan.
The following Tuesday (Monday was Memorial Day),
Wagner returned to the Recorder’s Office and asked for the
return of the mortgage. The Recorder informed Wagner that
the mortgage could not be rescinded unless the mortgagee
authorized a release, which SBA had not done, given that it
was not yet aware of the purported loan’s existence. Wagner
then recorded a second mortgage, which listed only himself
as the mortgagor. On May 30, several days after publicly
recording an SBA mortgage that did not exist, Wagner
submitted his “loan package” forms to the SBA. Wagner
contends that the SBA accepted the loan forms, time-
stamping the package, but that no individual ever informed
him that his forms were improperly filed. The SBA did not
formally reject Wagner’s “application” until June 11, 2002.
B. The Bankruptcy Court Proceedings and Chapter 7
Proceedings
The bankruptcy court heard the Trustee’s conversion
motion as scheduled on June 3. The morning of the hearing,
Wagner filed a “Plan of Arrangements,” a layman’s stab at
what is more technically known as a “Plan of
Reorganization,” which serves as the outline of how a debtor
intends to pay his or her creditors. The document, signed by
Wagner, read:
Harry Herbert Wagner, Jr.’s Plan of Arrangement is to
pay all legitimate Creditors a 100 cents on the Dollar of
exactly what they are actually owed. The Note Mortgage
is in Place, and Harry Herbert Wagner, Jr. is ready to
Commence, but there are no Certified Proof of Claims to
pay at the moment. Judge Mary Ann Whipple, you are
letting people move this Court, who have no interest in
any Claim. “Enough is Enough”. If there is not a
Verified Proof of Claim submitted to the Court within 30
6 United States v. Wagner No. 03-4313
days from the date of this letter, they are deemed not to
be a Creditor and will forfeit any right to a Claim. Upon
further examination with council [sic], the amount that
Harry Herbert Wagner, Jr owes may decrease. If there
are any disagreements with the Verified Proof of Claims,
Harry Herbert Wagner, Jr is ready to use mediation,
arbitration if both parties agree, or litigation to resolve
them.
J.A. at 514 (Plan of Arrangements) (emphasis added).
Wagner attached three items to the Plan of Arrangements.
First, he attached the second mortgage filed with the Allen
County Recorder’s Office, which purported to be worth
$10.75 million and which listed the SBA as the mortgagee.
Second, he included a mortgage note, written on an SBA
form, which listed the SBA as a lender of $10.75 million at an
interest rate of 6.5%. Third, Wagner included a letter from
Investt Acura Cal S.A. (“IAC”), allegedly located in Kent,
Washington, which expressed IAC’s intent to loan Wagner up
to $10.75 million. Wagner claimed that he paid $18,000 for
this loan guarantee, and he characterized the IAC loan
commitment as a “backup” to the SBA loan.
There were several problems with the alleged mortgage and
note attached to the Plan of Arrangements. First, and most
obviously, the SBA was not capable of making a loan to
Wagner. Second, the SBA did not guarantee loans exceeding
$1 million, so that even if Wagner had received a $10.75
million loan from a lending institution, the SBA could only
guarantee a small portion of the loan amount. Third, the note
referenced the alleged SBA loan as “SBA Loan 0001,” which
was clearly false, because the SBA employs eleven-digit loan
numbers. Fourth, the 6.5% interest rate listed on the note was
fabricated. Fifth, the IAC “backup” loan commitment was
unverified. The IAC loan commitment filed with the plan
was not written on IAC letterhead, and the government
alleges that no such loan commitment ever truly existed.

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No. 03-4313 United States v. Wagner 7
At the hearing, Wagner openly testified to his recalcitrance.
Wagner admitted to his refusal to meet with the Trustee’s
Office and further confirmed that he had not assisted the
Trustee’s Office in any meaningful fashion. During the
hearing, Wagner initially testified that the SBA had granted
his loan request. However, upon further questioning, Wagner
admitted that the SBA had not actually approved the loan and
that despite the lack of approval, he had still publicly recorded
the mortgage.
On June 6, the bankruptcy court granted the Trustee’s
motion to convert Wagner’s Chapter 11 bankruptcy to a
Chapter 7 bankruptcy. The court also addressed and denied
several motions filed by Wagner, some of which the court
described as “defamatory.” J.A. at 541 (Bankr. Ct. Or.
06/06/02). As to the Plan of Arrangements, the court stated
that “[i]t is hard for the court to decide what the most
shocking aspect of this filing is, as between the fact that it
turns out [Wagner] has not actually received any loan from
the SBA and has thus publically filed a fraudulent note and
mortgage and the fact that all of this occurred postpetition on
May 28, 2002, without any notice, a hearing, court approval
or Bankruptcy Code authority.” J.A. at 541-42. Finding
multiple bases for conversion pursuant to 11 U.S.C.
§ 1112(b), including Wagner’s bad faith in prosecuting his
petition, Wagner’s inability to create a reorganization plan,
and Wagner’s dereliction of his fiduciary duties to creditors,
the court determined that conversion was the proper result.
As a result of the conversion, Bruce French was appointed
trustee on June 6. Trustee French went to Wagner’s office
and informed Wagner that he was assuming control of
Wagner’s assets and business operations. According to
Trustee French, Wagner claimed that he would not cede
control of anything until Trustee French provided official
documentation of his role. Allegedly, Wagner also explicitly
stated that he would not cooperate with the Trustee’s Office
and that he considered the proceedings to be unlawful. On
June 8, Trustee French drafted a letter to Wagner’s tenants,
8 United States v. Wagner No. 03-4313
informing them that all rents were to be paid to the Trustee.
A few days later, Wagner wrote a responsive letter to his
tenants. Wagner claimed that all rents were still payable to
him and that failure to pay rents “as usual” could result in the
cessation of maintenance and lawn care.
Trustee French’s difficulties with the disposition of
Wagner’s property were compounded by Wagner’s actions
with regards to three of the six “smart houses” that were
among Wagner’s assets. These houses were unoccupied and
on the market for sale. Consequently, Trustee French hired
a real estate company to sell the homes and changed the locks
so as to effectuate this goal. In the beginning of July 2002,
Wagner directed one of his employees to change the locks
again and to return a single key for each home only to
Wagner. Shortly after, one of the realtors could not show the
home to a prospective buyer. Wagner claimed that he
changed the locks because there was a rash of break-ins at the
three houses and he wanted to control all the outstanding keys
to halt any future incidents, but the government presented
contrary evidence that Wagner in fact changed the locks to
interfere with Trustee French’s efforts.
C. Wagner’s Indictment, Trial, and Conviction
Wagner was indicted on November 6, 2002, in the United
States District Court for the Northern District of Ohio. The
grand jury charged three separate counts: 1) Wagner
fraudulently presented the SBA mortgage and note in the Plan
of Arrangements in violation of 18 U.S.C. § 157(2);
2) Wagner fraudulently ordered his tenants not to pay rent to
the Trustee in violation of 18 U.S.C. § 157(3); and 3) Wagner
concealed assets in violation of 18 U.S.C. § 152(1) by
changing the locks on houses that were assets of the Trustee.
The case proceeded to trial, and during the trial, the defense
tried to call Alyssa Leaser (“Leaser”), Wagner’s audiologist,
to testify as to Wagner’s hearing problems. The district court
did not admit her testimony on relevancy grounds. The trial
concluded on April 4, 2003. The jury returned a guilty

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No. 03-4313 United States v. Wagner 9
verdict on Counts One and Three, but the jury was unable to
reach a unanimous verdict on Count Two. The district court
sentenced Wagner to a six-month term for each conviction to
run concurrently. After Wagner filed his timely notice of
appeal, the district court stayed the defendant’s sentence
pending this appeal.
II. ANALYSIS
On appeal, we must resolve four distinct issues: 1) the
meaning of “conceal” as used in 18 U.S.C. § 152(1);
2) whether the evidence was sufficient to uphold Wagner’s
bankruptcy fraud conviction; 3) Wagner’s ineffective
assistance of counsel claim; and 4) the district court’s
exclusion of the testimony of Wagner’s audiologist. Each
issue involves a distinct standard of review, which we
describe in turn.
A. Wagner’s “Concealment” of Assets
Wagner’s first claim attacks his conviction for concealing
three unoccupied “smart houses” from Trustee French by
changing the locks on the doors of those houses. While both
parties suggest that the issue is best viewed as a question of
the sufficiency of the evidence, we analyze the problem
differently. In essence, the parties ask us to determine
whether the word “conceal,” as used in § 152(1), extends to
Wagner’s conduct. This is not a sufficiency-of-the-evidence
inquiry, as the evidence is clear that Wagner changed the
locks, but rather a question of statutory interpretation. We
review de novo questions of statutory interpretation. United
States v. Ninety-Three Firearms, 330 F.3d 414, 420 (6th Cir.
2003). “We begin our analysis by looking at the language of
the statute itself to determine if its meaning is plain. Plain
meaning is examined by looking at the language and design
of the statute as a whole.” Id. (quotations and citations
omitted). “[W]e may look to the legislative history of a
statute if the statutory language is unclear.” United States v.
Choice, 201 F.3d 837, 840 (6th Cir. 2000).
10 United States v. Wagner No. 03-4313
1There is no doubt that the houses belonged to Wagner’s bankruptcy
estate and that Wagner’s actions were directed at Trustee French. If there
is any question about the sufficiency of the evidence demo nstrating the
knowing and fraudulent nature of Wagner’s actions, it is resolved in favor
of the government because the government presented enough evidence
such that a rational juro r could convict W agner. While Wagner presented
evidence that he changed the locks for the non-fraudulent purpose of
keeping out vandals and robbers, the government presented evidence that
W agner in fact changed the locks to keep out the Trustee.
Wagner’s chief argument is that obstructing a Trustee’s
access to real property, and thus potentially hindering the sale
of that property, does not constitute concealment under
18 U.S.C. § 152(1). We have resolved very few cases
involving 18 U.S.C. § 152(1), and we have never addressed
this particular issue. We begin, as always, with the text of the
statute under which Wagner was convicted, which provides:
A person who — (1) knowingly and fraudulently
conceals from a custodian, trustee, marshal, or other
officer of the court charged with the control or custody of
property, or, in connection with a case under title 11,
from creditors or the United States Trustee, any property
belonging to the estate of a debtor . . . shall be fined
under this title, imprisoned not more than 5 years, or
both.
18 U.S.C. § 152(1). To prove Wagner’s guilt under 18 U.S.C.
§ 152(1), the government must show that: 1) Wagner
knowing and fraudulently; 2) concealed property; 3) from the
trustee; 4) that belonged to his estate. See United States v.
Christner, 66 F.3d 922, 925-26 (8th Cir. 1995). The only
issue here is whether Wagner concealed property.1 Under
either a narrow or a broad understanding of the term
“conceal,” we must conclude that Wagner concealed the
smart houses from the trustee.
The narrow construction of “conceal” — “To hide, secrete,
or withhold from the knowledge of others. . . . To cover or

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No. 03-4313 United States v. Wagner 11
keep from sight. To hide or withdraw from observation, or
prevent discovery of” — springs from its dictionary
definition. Black’s Law Dictionary 288 (6th ed. 1990); see
also Random House Unabridged Dictionary 422 (2d ed.
1993) (“[T]o hide; withdraw or remove from observation;
cover or keep from sight.”). By depriving the Trustee of
access to the house, Wagner concealed (i.e., he hid, secreted,
prevented discovery of, and withheld from the knowledge of
the Trustee) the value of the property. That the Trustee knew
of the house’s existence does not alter our conclusion,
because mere awareness of the property does not
concomitantly reveal the property’s value. Without access to
the inside of the home, no prospective buyer could accurately
assess the worth of the house and place a bid, which in turn
prevented the Trustee from learning the value of the house
and accordingly disposing of the estate. It would be no
different if Wagner revealed to the Trustee the existence of a
cache of diamonds in a locked box, but refused to give the
Trustee the key to open the box, preventing a buyer (and
consequently the Trustee) from assessing whether the
diamonds were of pristine cut, color, and clarity such that
they were worth $100,000 or were instead low-grade
diamonds worth only $10,000. Like diamonds, the value of
the smart house, as embodied in the sale price, cannot be
known until a purchaser bids on the house, which provides
the only true measure of the house’s value. Few rational
buyers would purchase a home without seeing the inside first.
Thus, limiting access to the inside of the house effectively
precluded any potential purchaser from making an informed
decision, which in turn prevented the Trustee from learning
the true value of the house. Such actions constitute
concealment of an asset.
The purposes of § 152, the section’s history, and its
interpretation by other courts support a broader construction
of “conceal,” and applying a more encompassing definition
does not alter our conclusion. Because the efficiency and
manageability of the bankruptcy system relies heavily on the
free flow of accurate information, § 152, like the rest of the
12 United States v. Wagner No. 03-4313
provisions governing bankruptcy crimes, exists not to protect
individual creditors, but rather “to prevent and redress abuses
of the bankruptcy system.” 1 Collier on Bankruptcy
¶ 7.01[1][a], at 7-15 (15th ed. 2004) (hereinafter “Collier”).
“[S]ection 152(1) promotes disclosure and revelation by
debtors, and furthers one of the main goals of the statute:
identification of all the debtor’s assets and affairs so that there
can be an objective evaluation of each bankruptcy estate.
Thus, the statute prohibits hiding assets from bankruptcy
officers and actively frustrating collection efforts by
creditors.” Id. at ¶ 7.02[1][a][i], at 7-22 (emphasis added);
see also Stuhley v. Hyatt, 667 F.2d 807, 809 n.3 (9th Cir.
1982) (“[T]he principal objectives of the provisions are to
prevent and punish efforts by a bankrupt to avoid the
distribution of any part of a liable bankrupt estate.”). Several
circuits have recognized that § 152 is “a congressional
attempt to cover all of the possible methods by which a
debtor or any other person may attempt to defeat the intent
and effect of the bankruptcy law through any type of effort to
keep assets from being equitably distributed among
creditors.” United States v. Goodstein, 883 F.2d 1362, 1369
(7th Cir. 1989) (internal quotations omitted) (emphasis
added); United States v. Thayer, 201 F.3d 214, 226 (3d Cir.
1999) (quoting Goodstein); United States v. Shapiro, 101
F.2d 375, 379 (7th Cir. 1939) (“The object of Congress in
passing [§ 152] was to punish those debtors who, although
wanting relief from their debts, did not want to surrender what
property there was to the creditors.”). Section 152 serves a
broad purpose; it exists to prevent a wide array of behavior
designed to stymie the bankruptcy system, and consequently
it targets many different kinds of conduct.
The history of the word “conceal” in the statute also
demonstrates that “conceal” has a broad meaning. Section
152, along with the other bankruptcy crimes provisions, first
appeared in § 29 of the Bankruptcy Act of 1898, which was
codified in Title 11 of the United States Code. See
Bankruptcy Act of 1898, ch. 541, § 29(b), 30 Stat. 544, 554
(1898). In 1938, Congress amended the Bankruptcy Act;

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No. 03-4313 United States v. Wagner 13
§ 1(7) of those amendments stated that “‘Conceal’ shall
include secrete, falsify, and mutilate.” The Chandler Act, ch.
575, § 1(7), 52 Stat. 840, 840 (1938). In 1948, the criminal
provisions of the Bankruptcy Act were moved to Title 18.
See Crimes and Criminal Procedure Act, ch. 645, § 152, 62
Stat. 683, 689 (1948). Section 1(7) remained a part of Title
11 (even though the term it was defining was nestled in Title
18) until 1979, when the Bankruptcy Reform Act of 1978
repealed § 1(7) along with large portions of the 1898
Bankruptcy Act. Despite this repeal, courts have continued
to apply an expanded definition of “conceal” in § 152(1)
cases. See Collier ¶ 7.01[1][b][i], at 7-16 (“Courts . . . have
not allowed the accident of transference to the criminal code
to change settled interpretations.”); United States v. Grant,
971 F.2d 799, 802 n.3 (1st Cir. 1992) (noting that “where
appropriate we cite to authority antedating the 1979
amendment”). For example, in Thayer, the Third Circuit
upheld a jury instruction in a § 152(1) case which read:
Fraudulently concealing property of the estate of the
debtor may include transferring property to a third party,
destroying the property, withholding knowledge
concerning the existence or whereabouts of property, or
knowingly doing anything else by which the person acts
to hinder, delay or defraud any of the creditors.
201 F.3d at 224 (emphasis added). Similarly, in United States
v. Turner, 725 F.2d 1154 (8th Cir. 1984), the court adopted a
comparably broad standard. It upheld the following jury
instruction:
Concealment means, not only secreting, falsifying and
mutilating as specified in section 1 of the Bankruptcy Act
but also includes preventing discovery, fraudulently
transferring or withholding knowledge or information
required by law to be made known.
Id. at 1157. The court held that “[c]learly concealment means
more than ‘secreting’; one does not have to put something in
14 United States v. Wagner No. 03-4313
a hidden compartment, a safe, or a hole in the backyard in
order to ‘conceal’ it. It is enough that one ‘withholds
knowledge,’ or ‘prevents disclosure or recognition.’” Id.
(quotation omitted).
The purpose of § 152(1) and the broad definition of
“conceal,” adopted first by Congress and then by the courts,
guide our holding that “conceal” in this context means more
than just the act of hiding property or withdrawing it from
sight. Section 152(1)’s relationship to real property
highlights the problem with an overly rigid definition of
“conceal.” Unlike cash, bonds, stocks, or other liquid assets,
real property cannot be easily hidden. Narrowly construing
the word “conceal” would sharply limit the type of behavior
§ 152(1) can reach, which contravenes the purpose of the
statute. Naturally, a debtor can withhold information about
the debtor’s ownership of a house, a parcel of land, or a
vehicle, but such refusal to disclose information about the
existence or whereabouts of real property does not exhaust the
ways in which a debtor can conceal real property. Other
actions, for instance, a debtor’s use of physical force to
prevent a trustee from approaching the debtor’s property or
the intentional marring of property to reduce its value to
prospective buyers, hinder or obstruct the trustee’s
responsibilities just as much as preventing the trustee from
learning about the existence of assets by “hiding” or
“secreting” away such assets. See, e.g., United States v.
Yagow, 953 F.2d 427, 430 (8th Cir. 1992) (affirming, without
discussion, a conviction under § 152 when the defendant
warned the trustee not to enter his property and constructed a
trench around his property to stymie removal of any
collateral). We agree with the other circuits that have held
that “concealing” property encompasses actions designed to
hinder, delay, or otherwise obstruct the ability of a trustee to
account for and distribute the debtor’s estate. See Thayer,
201 F.3d at 224; Turner, 725 F.2d at 1157. This holding
permits § 152(1) to serve its significant task of ensuring that
trustees can equitably distribute assets among creditors
pursuant to the bankruptcy laws without interference.

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No. 03-4313 United States v. Wagner 15
Under this standard, Wagner’s modification of the locks
constituted concealment. By changing the locks, Wagner
prevented the Trustee from showing the property to a
prospective buyer. It is true that the realtor, and thus by
extension the Trustee, was inconvenienced for only a short
amount of time by Wagner’s decision to change the locks.
Also, it is not certain that the individual(s) who wanted to
view the house on that particular day would have decided to
purchase it. However, such considerations are irrelevant;
there is no materiality requirement in § 152(1), and Wagner
would be no less criminally liable under § 152(1) if he had
changed the locks knowingly and fraudulently but the realtor
had not planned to show the house that particular day. See
Collier ¶ 7.02[1][a][i], at 7-24 (“[S]ection 152(1) has no
implicit or explicit materiality requirement; concealment of
any asset, if done knowingly and fraudulently, can support
conviction.”). Wagner’s intent to delay or obstruct the
Trustee is enough for culpability under § 152(1).
In reaching our conclusion, we do not ignore the rule of
lenity, which establishes that “in construing an ambiguous
statute, a court should resolve the ambiguity in favor of the
more lenient sentence.” Mallett v. United States, 334 F.3d
491, 499 (6th Cir. 2003); see also McElroy v. United States,
455 U.S. 642, 658 (1982) (“[A]mbiguity concerning the reach
of a criminal statute should be resolved by reading the statute
narrowly in order to encourage Congress to speak clearly,
thus giving the populace ‘fair warning’ of the line between
criminal and lawful activity, and in order to have the
Legislature, not the courts, define criminal activity.”). In
evaluating whether a statute is ambiguous for rule-of-lenity
purposes, it is not enough for the plain language to be unclear;
only when the plain language, structure, and legislative
history provide no guidance will we apply the rule of lenity.
United States v. Boucha, 236 F.3d 768, 774 (6th Cir. 2001).
Whatever ambiguity may inhere in the use of the word
“conceal,” there is no doubt that § 152(1) is part of a clear and
explicit framework of prohibitions designed to ensure the
equitable distribution of assets. Accordingly, the rule of
16 United States v. Wagner No. 03-4313
2At the conclusion of the government’s case-in-chief, Wagner moved
for a judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29. J.A. at 187 (Trial Tr. at 576 ); see Fed. R. Crim. P. 29(a)
(“After 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 con viction.”). The district judge first indicated that he would deny the
motion but then later stated that he would take the motion under
advisement. Trial Tr. at 576-77 (“M R. K LUGE : Make a Rule 29 motion
for judgment of acquittal. THE COURT: That will be overruled. MR.
KLUGE: You want me to articulate the reasons? T HE CO UR T: Sure,
lenity does not apply, and we uphold Wagner’s conviction
under § 152(1) for the concealment of property from the
Trustee.
B. Wagner’s Fraudulent Representation
Wagner’s second claim is that insufficient evidence exists
to sustain his conviction for bankruptcy fraud pursuant to
18 U.S.C. § 157(2). Our standard of review for this type of
claim presents a defendant with an uphill battle. See United
States v. Henley, 360 F.3d 509, 513 (6th Cir. 2004) (“A
defendant making such a challenge bears a very heavy
burden.”) (quotation omitted); United States v. Kelly, 204
F.3d 652, 656 (6th Cir. 2000) (“The standard for evaluating
claims that a conviction is not supported by sufficient
evidence presents a very difficult hurdle for the criminal
appellant.”) (quotation omitted). The key inquiry is “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. Humphrey, 279 F.3d 372, 378 (6th Cir. 2002)
(quotation omitted). We “will reverse a judgment for
insufficiency of evidence only if this judgment is not
supported by substantial and competent evidence upon the
record as a whole.” United States v. Chavis, 296 F.3d 450,
455 (6th Cir. 2002) (quotation omitted). In analyzing such a
claim, we do not weigh the evidence, evaluate witness
credibility, or displace the jury’s judgment with our own. Id.2

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No. 03-4313 United States v. Wagner 17
if you want, go ahead. MR. KLUG E: The Court’s going to take it under
advisement I won’t go into – TH E COU RT: I’ll simply take it under
advisement. Let the record show the motion has been made, it’s been
taken under advisement, and I deem all the defendant’s rights to be
app ropriately protected as of this point in the proceedings.”). However,
W agner did not renew his motion for judgment of acquittal at the close of
all the evidence, and it appears that the district judge never ruled on the
motion.
When a court denies a defendant’s motion for judgment of acquittal
at the close of the government’s case-in-chief and the defendant then puts
on evidence in his or her own defense without renewing the Rule 29
motion, the defendant “waives objection to the denial of his earlier
motion, absent a showing of a manifest miscarriage o f justice.” United
States v. Price, 134 F.3d 340 , 350 (6th Cir. 199 8) (“P hrased ano ther way,
where . . . a defendant does not renew his motion for judgment of
acquittal for insufficiency of the evidence at the close of all of the proo fs,
app ellate review is limited to determining whether there was a m anifest
miscarriage of justice. A miscarriage of justice exists only if the record
is devoid of evidence pointing to guilt.”) (internal quotation marks and
citations omitted). If the defendant does renew the motion for judgment
of acquittal at the close of all the evidence, the defendant still waives his
or her objection to the denial of the first motion, and on appeal, all of the
evidence will be considered when evaluating an insufficiency of the
evidence claim. See United States v. Black, 525 F.2d 668, 669 (6th Cir.
1975) (“The rule is settled that when a defendant introduces evidence, he
waives any objection to the denial of his motion to acquit at the close of
the government’s case. The defendant may re new his motion at the close
of all the proof . . . but the court will then consider the sufficiency of the
evidence on the record as a whole and not the sufficiency of the
government’s case in chief.”) (citations omitted).
Different rules apply, however, when the court does not decide a
defendant’s motion for judgment of acquittal at the close of the
gove rnment’s case-in-chief, but rather reserves ruling on the motion.
Rule 29(b) permits judges to reserve ruling on motions for judgment of
acquittal, including motions made at the close of the government’s case-
in-chief. See Fed. R. Crim. P. 29(b) (“The court may reserve decision on
the motion, proceed with the trial (where the motion is made before the
close of all the evidence), submit the ca se to the jury, and decide the
motion either before the jury returns a verdict or after it returns a verdict
of guilty or is discharged without having returned a verdict.”). Rule 29(b)
mandates that when a judge reserves ruling on a motion for judgment of
acquittal, the court “must decide the motion on the basis of the evidence
18 United States v. Wagner No. 03-4313
at the time the ruling was reserved,” even if the defendant has put on
evidence in his or her own defense.
As the U.S. Co urt of Appe als for the District o f Columbia Circuit
noted in United States v. Wahl, the text of Rule 29(b) suggests that when
a district judge reserves decision on a motion for judgment of acquittal at
the close of the government’s case-in-chief, the defendant does not waive
his or her objection to the ultimate denial of the m otion by failing to
renew the motion at the close of all the evidence. 290 F.3d 370, 374
(D.C. Cir.), cert. denied, 537 U.S 86 2 (2002 ) (“The Federal Rules are
silent as to whether a reserved mo tion must be renewed. See
Fed.R.Crim.P. 29. For this reason, we see no basis for penalizing a
defendant who appears before an efficient district court judge who returns
to a reserved motion without prompting and enters a ruling. We therefore
hold that when a defendant mo ves for judgm ent of acquittal at the close
of the government’s case and the court reserves ruling until after the case
is submitted to the jury und er Rule 29(b), and whe n the co urt does, in fact,
rule on that motion absent a renewal of that motion at the close of all
evidence by the defendant, the defendant is not required to take any
additional procedural steps to preserve the issue for appellate review.”).
However, it is unclear whether such analysis equally applies when the
district judge fails to rule on a reserved motion for judgment of acquittal
and the defendant has failed to renew the motion at the close of all the
evidence. See id. (“[W]e are not deciding whether a waiver occurs when
a defend ant fails to renew a reserved motion at the close of all the
evidence and the district court does not rule.”).
Because W agner’s insufficiency of the evidence claim lacks merit
even if we confine our review to the evidence presented in the
gove rnment’s case-in-chief and apply the less burdensome rational-trier-
of-fact standard, we d o not need to decide w hether W agner’s failure to
renew his reserved motion for judgment of acquittal, combined with the
district court’s apparent failure to rule at any point on the motion, alters
our standard of review or impacts the sco pe of evidence to be examined.
Wagner argues that the evidence does not support his
bankruptcy-fraud conviction because his actions did not have
any “proven effect on the Bankruptcy Court.” Wagner Br. at
24. Wagner was indicted and convicted pursuant to 18 U.S.C.
§ 157(2), which provides:
A person who, having devised or intending to devise a
scheme or artifice to defraud and for the purpose of

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No. 03-4313 United States v. Wagner 19
executing or concealing such a scheme or artifice or
attempting to do so — . . . (2) files a document in a
proceeding under title 11 . . . shall be fined under this
title, imprisoned not more than 5 years, or both.
18 U.S.C. § 157(2). We have stated, “Section 157(1) . . .
contains three elements: 1) the existence of a scheme to
defraud or intent to later formulate a scheme to defraud and
2) the filing of a bankruptcy petition 3) for the purpose of
executing or attempting to execute the scheme.” United
States v. DeSantis, 237 F.3d 607, 613 (6th Cir. 2001)
(emphasis added); see also United States v. McBride, 362
F.3d 360, 373 (6th Cir. 2004); Collier ¶ 7.07[1], at 7-118 to
7-119. We apply the same test in analyzing § 157(2), except
that we are concerned with the filing of a document in a
proceeding under Title 11 rather than the filing of a
bankruptcy petition. In reviewing the sufficiency of the
evidence of the intent to defraud, we are mindful of the fact
“that the question of intent is generally considered to be one
of fact to be resolved by the trier of the facts . . . and the
determination thereof should not be lightly overturned,”
United States v. Daniel, 329 F.3d 480, 487 (6th Cir. 2003)
(quotation omitted) (alteration in original).
Wagner does not dispute that there is sufficient evidence
that he filed the Plan of Arrangements, which is the allegedly
fraudulent document, or that the Plan served to execute the
scheme if the scheme existed. Instead, Wagner chiefly
contends that “there is a failure of proof that [the Plan and its
attachments] are a scheme or artifice to defraud.” Wagner Br.
at 22. The evidence clearly belies Wagner’s argument. The
Plan, to which Wagner attached the falsified SBA mortgage
and note, explicitly claimed that he had received a loan of
$10.75 million from the SBA when in fact he had not.
Furthermore and quite incredibly, at the hearing, Wagner first
falsely explained that he had received a loan from the SBA
before finally admitting not only that he had not received the
loan, but also that he had claimed the opposite in his Plan of
Arrangements and had recorded the mortgage with Allen
20 United States v. Wagner No. 03-4313
3In analyzing the federal mail and wire fraud statutes, after which
§ 157 was patterned, we have held that “[a]ctual reliance is . . . plainly not
required.” United States v. Daniel, 329 F.3d 480, 487 (6th C ir. 200 3); see
also Neder v. United States, 527 U .S. 1, 24-25 (1999) (“The common-law
requirements of ‘justifiable reliance’ and ‘damages[]’ . . . plainly have no
place in the federal fraud statutes. By prohib iting the ‘scheme to defraud,’
rather than the completed fraud, the elements of reliance and damage
would clearly be inconsistent with the statutes Congress enacted.”);
18 U.S.C. §§ 13 41, 13 43 (both referring to “devis[ing] or intending to
County, in violation of bankruptcy rules forbidding the
encumbrance of property without prior approval. The Plan
and the attached mortgage and note were clear fabrications
because they included a fictitious interest rate and a
nonexistent SBA loan number, they exceeded the SBA’s loan
guarantee limit, and the SBA is not even institutionally
capable of making loans. Wagner’s complete unwillingness
to aid the Trustee’s Office and his attempts to disrupt the
Chapter 11 process provide collateral evidentiary support for
the notion that Wagner’s Plan of Arrangements constituted
one more episode in a series of schemes to mislead the
bankruptcy court and to delay the bankruptcy proceedings.
When combined, the evidence clearly demonstrates an intent
to defraud, and there is no doubt that a rational trier of fact
could have found Wagner guilty.
Wagner offers several unpersuasive reasons why the
evidence was insufficient. First, he claims that because the
Plan of Arrangements did not cause “anyone to act or refrain
from acting,” Wagner Br. at 25, there is insufficient evidence
to support his conviction. This is plainly incorrect; there is
simply no requirement that the fraudulent filing have its
intended effect for a defendant to be liable under § 157(2).
“Success of the scheme is not an element of the crime.”
DeSantis, 237 F.3d at 613. “The [bankruptcy fraud] statute
makes the crime complete upon the filing of the bankruptcy
petition when the filing is accompanied by the other two
defined circumstances. . . . Filing itself is the forbidden act.”
Id.3 The mere filing of the Plan of Arrangements and the

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No. 03-4313 United States v. Wagner 21
devise any scheme or artifice to defraud ,” similar to § 15 7); Collier
§ 7.07[1 ][a], at 7-119 to 7-121 (describing links betw een mail fraud
statute and bankruptcy fraud statute). The comparable absence of reliance
as an element in both mail/wire fraud and bankruptcy fraud informs our
rejection of W agner’s claim that his conviction must be overturned
because no individual relied upon his misrepresentations.
mendacious mortgage and note are enough to create criminal
liability under § 157(2) because such action is evidence of a
scheme or artifice to defraud. The purported SBA mortgage
and note are no less fraudulent merely because they were
unconvincing. It would be counterproductive to hold that
debtors making fraudulent statements in bankruptcy
proceedings can elude prosecution simply because the
bankruptcy court successfully sniffed out the
misrepresentation.
Second, Wagner directs us to the legislative history of
§ 157(2), which he believes highlights the insufficiency of the
evidence. Section 157(2) was enacted as part of the
Bankruptcy Reform Act of 1994. Pub. L. No. 103-394, 108
Stat. 4106, 4140, § 312(a)(1)(B) (1994). The House Report
states that “[u]nder no circumstances is this section to be
operative if the defendant is adjudicated as having committed
the act alleged to constitute fraud for a lawful purpose.” H.R.
Rep. No. 103-835, at 57 (1994), reprinted in 1994
U.S.C.C.A.N. 3340, 3366. As examples, the report suggests
that § 157 would not apply when an individual makes a
misrepresentation on a financial statement before filing
bankruptcy so long as the individual did not make the
misrepresentation in preparation for bankruptcy, nor would
the statute apply if an individual made a false statement
unrelated to the bankruptcy proceeding. Id. at 3366-67. This
legislative history does not help Wagner, who argues that the
“lawful purpose” behind his filing of the Plan of
Arrangements was to demonstrate his intent to repay his
creditors. Wagner’s actions can hardly be considered lawful,
as his Plan fraudulently described a mortgage that did not
22 United States v. Wagner No. 03-4313
exist. Furthermore, Wagner cannot claim to fit within any of
the exceptions described in the legislative history of § 157.
Third, Wagner suggests that the Plan of Arrangements was
not fraudulent because even though the SBA mortgage and
note were false, they were allegedly backed up by the IAC
loan commitment. In essence, Wagner claims that the Plan
merely demonstrated his intent to pay his creditors and if the
bankruptcy court had approved the Plan without realizing the
SBA loan was a forgery, the IAC loan would have served to
satisfy Wagner’s creditors, such that the Plan’s stated
intention was not false. This argument is factually misleading
because it ignores the falsified mortgage and note attached to
the Plan and referenced in the text of the Plan. This
contention also misses the point, as it is actually just a variant
of Wagner’s reliance contention. Even assuming that the IAC
loan commitment was real, which the government has
convincingly called into question, Wagner still
misrepresented the SBA mortgage and note. Wagner did not
cease either to engage in a scheme to defraud or to file a
document in furtherance of that scheme simply because he
had a legitimate backup plan. The fact that the IAC loan, if
it existed, might have potentially helped to satisfy his
creditors does not eliminate the illegality of Wagner’s false
statements about an SBA loan for which he never received
approval.
Fourth, Wagner suggests that he was unaware of both
SBA’s inability to make loans and its guarantee limit of $1
million because he could not hear the SBA officials. It is
unclear why his knowledge in this regard is relevant. As an
initial matter, the testimony from the SBA officials
demonstrated convincingly that Wagner understood that the
SBA could not offer him a loan, and Wagner never testified
at trial that a hearing problem prevented him from
understanding the SBA officials. Yet even assuming that
Wagner benignly did not comprehend the SBA’s rules, he still
fraudulently informed the bankruptcy court that he had
received authorization for a loan when in fact he had not.

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No. 03-4313 United States v. Wagner 23
4W agner’s improper inclusion with his appellate brief of an affidavit,
which purp orts to establish “critical facts,” Wagner Br. at 30 n.8,
regarding W agner’s Sixth Amendment claim, but which was not a part of
the trial court record, und erscores why ineffective assistance claims are
best left to collateral review. See Fed. R. App. P. 10 (a) (limiting the
record on appeal to “the original papers and exhibits filed in the district
court,” “the transcript of proceedings, if any,” and the district co urt’s
docket entries); Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 404 (6th
Perhaps Wagner misunderstood SBA’s role as a lender, but
surely from his thirty years as a developer Wagner knew that
one cannot obtain a mortgage without lender approval.
In sum, the government presented adequate evidence to
support Wagner’s conviction for the bankruptcy fraud. A
rational trier of fact could conclude that Wagner devised a
scheme to defraud the court and filed his Plan of
Arrangements for the purposes of furthering that scheme.
C. Ineffective Assistance of Counsel
Wagner also argues that he was deprived of his Sixth
Amendment right to the effective assistance of counsel
because his counsel made several mistakes during the course
of his trial. Wagner claims that his counsel erred by:
1) failing to file a motion to dismiss on the concealment
charge; 2) failing to renew the Rule 29 motion for acquittal;
3) failing to argue during closing argument that there was no
concealment; 4) failing to question a prosecution witness
about the alleged loan commitment from IAC; 5) failing to
inform the jury that Wagner’s rental incomes were
substantially reduced by his expenditures; and 6) failing to
offer the audiologist’s testimony for the proper purpose.
We review de novo claims of ineffective assistance of
counsel because they are mixed questions of law and fact.
United States v. Fortson, 194 F.3d 730, 736 (6th Cir. 1999).
A direct appeal is not generally the best forum for an
ineffective assistance of counsel claim.4 “[I]n most cases a
24 United States v. Wagner No. 03-4313
Cir. 1992) (“This Court will not entertain on appeal factual recitations not
presented to the district court.”). The attachment of the affidavit signals
that there may be other factual issues concerning the alleged ineffective
assistance of counsel that are best analyzed by a trial court in a § 2255
proceeding during which the affidavit could be properly received.
motion brought under § 2255 is preferable to direct appeal for
deciding claims of ineffective-assistance. When an
ineffective-assistance claim is brought on direct appeal,
appellate counsel and the court must proceed on a trial record
not developed precisely for the object of litigating or
preserving the claim and thus often incomplete or inadequate
for this purpose.” Massaro v. United States, 538 U.S. 500,
504-05 (2003). Nonetheless, because of the relatively short
duration of Wagner’s incarceration, Wagner’s appellate
counsel urges us to consider his ineffective assistance of
counsel claim at this time. Upon doing so, we hold that there
is nothing currently in the record that permits us to conclude
that “counsel’s conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland v. Washington, 466
U.S. 668, 686 (1984).
To demonstrate a constitutional violation pursuant to
Strickland, a defendant must show: 1) “that counsel’s
performance was deficient” such that it did not constitute
“reasonably effective assistance,” id. at 687; and 2) “that there
is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. There is nothing in the record that
indicates that counsel’s actions were deficient, as opposed to
exercises of justifiable trial strategy, although naturally the
record before us is limited on this point. Yet, even if the
record highlighted clear failures in his attorney’s
representation, Wagner has failed to show that he was
prejudiced by the purported deficiencies. Two of the six
alleged deficiencies concern trial counsel’s failure to
challenge the “concealment” charge. Because we hold that as

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No. 03-4313 United States v. Wagner 25
a matter of law Wagner’s undisputed actions constituted
concealment, Wagner was not prejudiced by his attorney’s
failure to file a motion to dismiss or to argue before the jury
that Wagner was not guilty of concealment. Wagner also
suggests that his attorney erred by failing to renew the Rule
29 motion for acquittal. Yet, even if renewed, the motion
should have been denied because the evidence is sufficient to
support the conviction. Furthermore, the attorney’s alleged
failure to question a witness about the IAC loan and to inform
the jury about Wagner’s rental income did not impact the
proceedings, because there was sufficient evidence supporting
the bankruptcy fraud count even if the attorney had
undertaken these actions. Finally, as we explain below, even
if Wagner’s trial counsel had offered the audiologist’s
testimony for the proper purpose, the district court still would
have been justified in refusing its admission on account of its
irrelevance. Accordingly, Wagner’s Strickland claim fails.
D. The Audiologist’s Testimony
Wagner’s final claim concerns the district court’s alleged
error in refusing to allow Leaser, Wagner’s audiologist, to
testify. During the trial, Wagner’s attorney stated that Leaser
would testify regarding Wagner’s inability to hear and to
understand the June 3 proceeding in the bankruptcy court.
The government objected to the testimony on relevancy
grounds, and the district court excluded Leaser’s testimony on
that basis. J.A. at 188-90. We review for abuse of discretion
the district court’s evidentiary rulings. United States v.
Bartholomew, 310 F.3d 912, 920 (6th Cir. 2002). “Under this
standard, we will leave rulings about admissibility of
evidence undisturbed unless we are left with the definite and
firm conviction that the [district] court . . . committed a clear
error of judgment in the conclusion it reached.” Id. (internal
quotations omitted) (alteration in original). In dealing with
questions of relevance, we have accorded district courts
ample discretion; “Broad discretion is given to district courts
in determinations of admissibility based on considerations of
relevance and prejudice, and those decisions will not be
26 United States v. Wagner No. 03-4313
lightly overruled.” United States v. Jackson-Randolph, 282
F.3d 369, 376 (6th Cir. 2002). Under Federal Rule of
Evidence 401, “‘Relevant evidence’ means evidence having
any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Fed.
R. Evid. 401.
Under this standard, we uphold the district court’s
exclusion of Leaser’s testimony as a valid exercise of its
discretion, because this testimonial evidence concerned facts
that, if true, were of no consequence to Wagner’s trial. At
trial Wagner sought to introduce Leaser’s testimony to prove
that he had difficulty hearing the bankruptcy court
proceedings. Even if Wagner had difficulty hearing the
conversion-motion proceedings, such problems would not
have impacted his filing of a fraudulent SBA mortgage and
note shortly before the June 3 hearing began or his changing
of the locks a month after the hearing.
On appeal, Wagner suggests that his trial counsel erred
because Leaser’s testimony was in fact supposed to show that
Wagner failed to hear the statements of the SBA employees
and thus was not aware that the SBA could neither make
loans nor guarantee loans over $1 million. Yet, even if
Wagner’s attorney had profferred the evidence for the
supposedly correct purpose, the district court would still have
been justified in excluding the evidence on relevancy
grounds. Any hearing problems that may have interfered with
Wagner’s ability to understand fully the SBA’s loan-making
capacity did not excuse the filing of a Plan of Arrangements
containing a fraudulent mortgage and note. Wagner’s alleged
hearing problem has no discernible relevance, because
Wagner’s utterance in the bankruptcy court that he had
obtained a loan when he in fact had not is fraudulent no
matter his auditory comprehension of the SBA’s loan
policies. Therefore, the district court did not abuse its
discretion in declining to admit Leaser’s testimony.

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No. 03-4313 United States v. Wagner 27
III. CONCLUSION
In sum, all of Wagner’s claims fail. First, as a matter of
law, changing the locks so as to obstruct a trustee’s access to
the property of the debtor’s estate constitutes concealment.
We accordingly uphold Wagner’s conviction for violating
18 U.S.C. § 152(1). Second, there is sufficient evidence that
Wagner filed a fraudulent document in his bankruptcy
proceeding. Third, Wagner’s ineffective assistance of counsel
claim lacks merit because he cannot demonstrate prejudice.
Fourth, we hold that the district court did not abuse its
discretion in excluding the testimony of Wagner’s audiologist
on relevancy grounds. Therefore, we AFFIRM the judgment
of the district court.

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