FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                     UNITED STATES COURT OF APPEALS                  October 6, 2009

                            FOR THE TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 08-6222
                                                (D.C. No. 5:07-CR-00299-F-2)
    TERRY HUGH MAHON,                                   (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before O’BRIEN, PORFILIO, and TYMKOVICH, Circuit Judges.



         In this direct criminal appeal, Terry Hugh Mahon challenges the sufficiency

of the evidence to support his convictions following a jury trial for:

(1) conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349; (2) mail

fraud in violation of 18 U.S.C. § 1341; (3) money laundering in violation of

18 U.S.C. § 1957(a); and (4) money laundering in violation of 18 U.S.C.



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
§ 1956(a)(1)(B)(i). 1 Exercising jurisdiction under 28 U.S.C. § 1291, and having

reviewed the issue de novo in the light most favorable to the government, see

United States v. Roach, __ F.3d __, 

, at *8 (10th Cir. Sept. 21,

2009), we conclude that the government presented sufficient evidence at trial to

support Mr. Mahon’s convictions. We therefore affirm.

                                I. BACKGROUND

      The parties have done a thorough job in their briefs summarizing the

background facts and trial proceedings pertaining to Mr. Mahon’s convictions,

and we repeat them here only as necessary to clarify our holding. We also note

that, at its core, this is a fairly simple case based on mostly undisputed facts. As

the government has explained, “[s]imply put, [Mr. Mahon and his coconspirator,

Grover Phillips] ran a scheme in which people paid seventeen percent of the value

of their homes in exchange for a promise to receive the full value of their home

[as a rebate] at the end of five years.” Aplee. Br. at 6. Thus, for purpose of each

of the counts charged against Mr. Mahon (i.e., conspiracy, mail fraud, and money

laundering), the overarching issue for the jury to decide was whether he acted or

conspired to act with a specific intent to defraud in executing the rebate scheme.

The jury unanimously resolved this issue against Mr. Mahon.


1
       The district court sentenced Mr. Mahon to concurrent prison sentences
totaling thirteen years and entered related restitution and forfeiture orders.
Mr. Mahon is not appealing the sentences or monetary penalties imposed by the
district court.

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                                   II. ANALYSIS

      As the government has correctly pointed out, “[a]lthough Mr. Mahon

challenges his convictions for conspiracy, mail fraud, and money laundering, his

argument as to each count rests entirely on the proposition that [he] did not intend

to defraud anyone.” 

see also Aplt. Br. at 14 (“If the Defendant lacked

the requisite intent to defraud and was therefore not guilty of mail fraud . . ., he

cannot be found guilty of money laundering because the money was not

unlawfully obtained. If the Defendant was acting in good faith without the intent

to defraud he cannot be guilty of conspiracy.”). As Mr. Mahon puts it, he was a

“dreamer not a schemer.” Aplt. Br. at 15. Consequently, because this appeal is

limited to the issue of Mr. Mahon’s fraudulent intent, we do not need to address

the sufficiency of the evidence as it pertained to any other elements in the counts

of conviction.

      We conclude that the government presented sufficient evidence at trial to

prove beyond a reasonable doubt that Mr. Mahon intended to defraud the victims

of the rebate scheme. Specifically, we agree with the government that “[t]he

evidence at trial demonstrated that Mr. Mahon and Mr. Phillips knew that they

were not investing money to generate the required exorbitant returns and that they

would never honor the millions of dollars in rebate claims that would ultimately

be lodged against them.” Aplee. Br. at 15. In light of this evidence, the jury




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could therefore infer that “Mr. Mahon agreed with Mr. Phillips to take money

fraudulently through their rebate program.” 

      In reaching this conclusion, we adopt the following arguments from the

government’s well-reasoned brief:

             First, the very nature of Mr. Mahon’s rebate program suggests
      a conspiracy to defraud. Mr. Mahon himself acknowledged that the
      program required an annual return of fifty-seven percent,
      compounded annually. When he made this statement in October of
      2001, he also admitted that [Amsterdam Fidelity Business Trust] had
      not yet made any high-yield investments. Mr. Phillips, the manager
      of the “trading company” on which Mr. Mahon was relying for this
      fifty-seven percent return, was far from a financial wizard. He was
      merely an acquaintance who had failed in business with Mr. Mahon
      in the past and who had never managed a trust. Rather than choosing
      an investment firm with a track record, Mr. Mahon chose a new,
      uncapitalized business trust that was operated out of Mr. Phillips’s
      house in Stillwater and had no insurance or bonds. Mr. Mahon was
      in regular contact with Mr. Phillips about the status of investments
      and therefore knew throughout the scheme that Amsterdam’s
      investment efforts had been unsatisfactory, to put it mildly. Under
      these circumstances, the jury was entitled to infer that Mr. Mahon set
      up Rebates from the outset as a vehicle for committing fraud in
      conjunction with Mr. Phillips.

             Second, the jury heard numerous instances in which
      Mr. Mahon made false and misleading statements to promote his
      scheme and prevent his fraud from being detected. . . . In
      [particular], Mr. Mahon lied during his 2001 deposition about his
      ability to raid the account that was supposed to be earning fantastic
      investment returns.

            ....

             Third, Mr. Mahon demonstrated from the beginning to the end
      of the existence of Rebates that his goal was to walk away with as
      much money as possible at the expense of victims who expected to
      receive a return on their investments. Mr. Mahon and Mr. Large

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      received over $900,000 from Amsterdam’s investment funds during
      the life of the scheme. This fleecing of the investment corpus is
      flatly inconsistent with a legitimate investment enterprise, especially
      one that needs to earn over fifty percent in interest every year to
      meet its obligations.

             ....

            Fourth, the jury could take into account the changing and
      radically expanding nature of Mr. Mahon’s obligations during the
      scheme. At the very least, Mr. Mahon and Mr. Phillips knew that
      they were running a fraudulent scheme by late 2002, when
      Amsterdam’s investments had failed and the Rebates organization
      continued to market the rebate coupons and accept money from
      victims. . . .

             Like Mr. Phillips, Mr. Mahon was aware as early as October of
      2001 that Rebates was involved in issuing [rebate] coupons based on
      the value of real estate. A reasonable jury could easily conclude that
      once Mr. Mahon and Mr. Phillips began accepting money relating to
      rebates on real estate, they were operating under an agreement to
      defraud those who purchased rebate coupons.

21, 23 (citations to the record and footnote omitted).

      The judgment of the district court is AFFIRMED. Mr. Mahon’s motion to

seal the presentence report is GRANTED.


                                                     Entered for the Court


                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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