United States of America v. Thomas O’connell Holstein

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2822
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THOMAS O’CONNELL HOLSTEIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:06-cr-00761-1—John F. Grady, Judge.
ARGUED APRIL 15, 2010—DECIDED AUGUST 18, 2010
Before BAUER, ROVNER and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. Thomas O’Connell Holstein
was convicted of nine counts of bankruptcy fraud
and making false statements in bankruptcy petitions, in
violation of 18 U.S.C. §§ 157 and 1519. He appeals
his conviction claiming that there was insufficient evi-
dence with which to find him guilty beyond a rea-
sonable doubt. We affirm.

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2 No. 09-2822
I. BACKGROUND
Holstein provided bankruptcy services at his law
firm, known as Lawline. In September 2005, he signed
a consent petition with the Illinois Attorney Registra-
tion and Disciplinary Commission in which he acknowl-
edged professional misconduct and agreed to an eighteen-
month suspension of his law license, effective October 17,
2005. Despite the agreement and impending suspen-
sion, Holstein continued to accept clients throughout
August and September of that year.
Several former clients testified that they called Lawline
in September of that year, seeking legal representation
in their bankruptcy proceedings. Holstein routinely
answered the phone and advised the clients to come to
the office for an in-person consultation. But the clients
testified that they usually met only with Lisa Vega, a
paralegal Holstein employed, who helped them fill out
forms and accepted their fees. If they saw Holstein at
all, it was only momentarily.
Vega testified that Holstein directed her to accept fees
from the clients and file the bankruptcy petitions on
their behalf. In addition, Vega said Holstein directed her
to black out his name on the petitions and indicate that
the clients were not represented by counsel and would
proceed pro se. The petitions therefore represented to
the court that the clients paid no legal fees. But because
Lawline handled the filings, each of the clients testified
that they arrived at their initial creditors’ meeting ex-
pecting Holstein to appear as their attorney. None of
the clients was aware of the pro se status statements on
his or her petition.

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No. 09-2822 3
A grand jury indicted Holstein on nine counts of bank-
ruptcy fraud, 18 U.S.C. § 157(1), and making false state-
ments in a bankruptcy proceeding, 18 U.S.C. § 1519.
After a bench trial, Judge Grady found Holstein guilty
beyond a reasonable doubt on all counts and sentenced
him to one year and one day in prison. Specifically, the
Judge found that Holstein solicited clients, accepted fees,
and hid from the clients his impending suspension and
consequent inability to complete the representation;
misrepresented to the bankruptcy court that the debtors
were unrepresented by counsel; and made the misrep-
resentations to conceal that he was practicing without
a license.
Holstein timely appealed.
II. DISCUSSION
To establish Holstein’s guilt for bankruptcy fraud, the
government had to prove: (1) that he engaged in a fraud-
ulent scheme; (2) that he made misrepresentations to the
bankruptcy court; (3) in order to further the scheme. See
18 U.S.C. § 157 (2008). In order to prove Holstein guilty
of falsifying documents before a bankruptcy court, the
government had to show that he “falsified . . . any docu-
ment with the intent to impede, obstruct or influence”
a bankruptcy matter. See 18 U.S.C. § 1519.
Holstein argues that the government presented insuffi-
cient evidence to establish his guilt on the essential ele-
ments of the statutes in question. Challenging the suffi-
ciency of the evidence is a tough undertaking at best. See

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4 No. 09-2822
United States v. Carillo, 435 F.3d 767, 775 (7th Cir. 2006). We
must be persuaded that “after viewing the evidence in
the light most favorable to the prosecution, [no] rational
trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v.
Curtis, 324 F.3d 501, 505 (7th Cir. 2003) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)). We will not reweigh
the evidence or second-guess the credibility determina-
tions. United States v. Seversen, 569 F.3d 683, 689 (7th
Cir. 2009).
Holstein argues that the government failed in its
proof because he had no involvement in any of the con-
sultations with the clients or in filing the fraudulent
bankruptcy petitions. For almost the entire time, ac-
cording to Holstein, he was drunk and secluded at his
summer home. He claims the evidence showed that Vega
acted alone. Vega met with the clients, filled out the
petitions and accepted the fees. Holstein was rarely if
ever in the office. He points to several possible motives
Vega may have had for filing the petitions pro se, in-
cluding keeping her job and retaliating against Holstein
for a failed romance. If Vega acted alone, she would be
solely responsible for the misrepresentations.
As a sort of alternative argument, Holstein claims the
government failed to prove he could have intended to
mislead the bankruptcy court about whether the debtors
in question were represented by counsel. Even if he
directed Vega’s actions in filing the pro se petitions, the
fact that he paid the debtors’ filing fees with Lawline
checks precludes any inference that he intended to

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No. 09-2822 5
defraud the court. Lawline was “universally associated”
with Holstein, he argues, and he would never have
used the checks bearing his firm’s name if he wanted to
mislead the court. Other lawyers did appear on the cli-
ents’ behalf in some of the cases, which Holstein claims is
further proof that he never intended to conceal the fact
that the clients were represented by counsel.
But there is scant evidence in the record to support
his theories. As mentioned above, Vega testified that
Holstein directed her to black out his name and label
the bankruptcy filings “pro se.” She acknowledged her
past relationship with Holstein, as well as the fact that
Holstein’s absence left her in complete control of the
office much of the time. The Judge found her testimony
“credible and uncontradicted,” and determined that
Holstein indeed directed Vega’s actions. Moreover,
several of the clients testified that though they met with
Vega, they believed, before going to their initial bank-
ruptcy hearings, that Holstein represented them.
Also unsupported in the record is Holstein’s argument
that paying the filing fees with Lawline checks obviously
communicated to the bankruptcy court that he repre-
sented the debtors, thus negating any inference that
Holstein intended to deceive the court. While there was
testimony that Holstein had filed thousands of bank-
ruptcy petitions under the Lawline name over the years,
Holstein presented no evidence tending to show that
clerks in the bankruptcy court would generally associate
him with the name Lawline, or would recognize that a
debtor whose petition accompanied such a payment was

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6 No. 09-2822
represented by counsel. As the Judge pointed out in his
findings, the clerks in fact did not make the connection
demonstrated by the entry in the docket that they were
pro se filings. Arguing that Holstein thought the use of
the Lawline check would make the court aware that he
represented the debtors also implicitly undercuts his
argument above that Vega acted alone.
With no evidence in the record to cast doubt on the
district court’s findings, Holstein’s appeal boils down to
challenging the Judge determinations as to the credi-
bility of the witnesses. Such a tactic is “doomed at the
outset,” United States v. DeCorte, 851 F.2d 948, 952 (7th Cir.
1988). The Judge found the evidence “overwhelming” that
Holstein directed Vega’s actions and that any inference
that use of a Lawline check negated Holstein’s intent
was “implausible . . . [and] had absolutely no bearing
on Mr. Holstein’s frame of mind at the time these peti-
tions were filed.” The Judge had the best opportunity
to listen to the witnesses and make credibility determina-
tions and we will not second-guess those findings here.
See United States v. Kozinski, 15 F.3d 795, 820 (7th Cir. 1994).
III. CONCLUSION
The evidence was sufficient to establish beyond a
reasonable doubt the essential elements of both 18 U.S.C.
§ 157(1) and 18 U.S.C. § 1519. Holstein’s conviction
is AFFIRMED.
8-18-10

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