UNITED STATES of America, Plaintiff-Appellee, v. John MILWITT, Defendant-Appellant, 475 F.3d 1150

THOMAS, Circuit Judge. John Milwitt (“Milwitt”) appeals his conviction of five counts of bankruptcy fraud and his sentence of twenty-four months imprisonment and three years supervised release. Milwitt challenges his conviction on several bases, including sufficiency of the evidence. Because the evidence presented was insufficient to sustain the verdict, we reverse the conviction.

I Sometime prior to March 1997, Milwitt placed an advertisement in the yellow pages of the phone book under the headings of “Attorneys” and “Landlord Tenant Law.” The advertisement was for a company called “AP Assistance” and suggested that the company could provide both legal services through attorneys as well as assistance for individuals representing themselves. The advertisement was one of the few, if not the only, that explicitly mentioned “tenants’ rights.” Milwitt never attended law school and has never been admitted to practice law.

Based on the advertisement in the yellow pages, several tenants, including the six tenants described in the indictment, who were having problems with their landlords, contacted Milwitt. The tenants paid Milwitt varying amounts of money for his assistance with defending their unlawful detainer actions. Each of the tenants testified that Milwitt represented himself as an attorney and that he seemed to know what he was talking about. Milwitt advised the tenants that they were entitled to withhold rent from their landlords.

In addition, Milwitt told one of the tenants that she could use money that she withheld from her landlord to pay his fees. Milwitt collected fees from each of the tenants. The tenants believed that Milwitt was going to represent them in unlawful detainer actions filed against them by their landlords. Although Milwitt collected fees from the tenants with the understanding that he would represent them in court, Milwitt only filed papers on their behalf. He did not appear in court for any of the unlawful detainer actions, and default judgments were entered in favor of each of the landlords.

Although Milwitt listed each of the tenants as appearing pro per on their court documents, the tenants believed that Mil-witt was their attorney and taking care of their cases. Further, Milwitt listed a street address which actually corresponded to a general public mail services business where he rented a mailbox as the tenants’ address on all documents he filed with the courts. Therefore, all correspondence relating to the cases was forwarded to Milwitt rather than to the tenants, slowing their discovery of Milwitt’s failure to represent them.

Milwitt filed bankruptcy petitions on behalf of several of the tenants, without their authorization or knowledge. These bankruptcy petitions listed the relevant landlords as well as fabricated creditors. While the tenants did not know about or authorize the filing of these petitions, Mil-witt did tell them that for various reasons they did not have to pay judgments entered against them or move out after receiving eviction notices. The petitions were filed under

Chapter 13 of the United States Bankruptcy Code, and the petitions indicated that the debtors would be filing a plan for repayment of the debts. In 1999, Milwitt was indicted and convicted on charges of the unauthorized practice of law in California state court. Milwitt was released from state custody in February 2002. On March 21, 2002, Mil-witt was indicted on six counts of bankruptcy fraud in violation of 18 U.S.C. § 157. These charges were based on the bankruptcy petitions he filed on behalf of the tenants.

In particular, the indictment states that between March 1997 and November 1998, Milwitt made “false and fraudulent representations, claims and promises concerning or in relation to a proceeding under [the Bankruptcy Code]” in relation to a scheme to defraud. The indictment describes the scheme in the following language: 2. Defendant Milwitt represented to persons threatened with eviction by their landlords that he would fight their eviction in court or negotiate an arrangement with their landlord. 3. Based on his solicitations a number of persons retained the defendant’s services to stop the eviction process.

Defendant Milwitt normally charged fees for his services, as well as reimbursement for filing fees and other expenses. 4. An a part of and in furtherance of his scheme, defendant Milwitt filed voluntary petitions with the United States Bankruptcy Court.... Under a provision of the United States Bankruptcy Code, the filing of a bankruptcy petition automatically suspends all judgments, collection activities, foreclosures, and repossessions of property, and prevents foreclosure on the property of a debtor until such time as the landlord or lender obtains relief from this stay or the bankruptcy is dismissed. 5.

In fact, the bankruptcy petitions were shams: the clients did not grant defendant Milwitt permission to file for bankruptcy on their behalf. Rather, with intent to deceive and for the purpose of filing the bankruptcies identified above, the defendant forged the names of the clients on documents filed without their knowledge or consent. As a further part of the scheme to defraud, he frequently supplied false social security numbers on the petitions. 6.

By filing the sham petitions, the defendant fraudulently interfered with the process of the United States Bankruptcy Court, and fraudulently obstructed the creditors’ legal right to collect back rents, and repossess the properties. 7.

On or about the dates listed below, the defendant John Milwitt, having devised a scheme to defraud, for the purpose of executing and concealing the scheme and attempting to do so, concerning or in relation to a proceeding under Title 11 of the United States, did file bankruptcy petitions in the Northern District of California in the following debtors’ names using false and fraudulent representations, each such act being a separate violation of 18 U.S.C.

Section 157. At the end of a two day jury trial, Milwitt was convicted of five counts of bankruptcy fraud. Milwitt timely filed a notice of appeal. The evidence is sufficient to support a conviction if, “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.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Milwitt challenges the sufficiency of the evidence to sustain the bankruptcy fraud conviction, contending that the government proved that he acted with the intent to defraud the tenants rather than “the intent to defraud a creditor” of the tenants as charged in the indictment. II Although “[mjodern bankruptcy’s origins are in English criminal law,” in our country, “the criminal side of bankruptcy has assumed a more modest role.” 1 Collier on Bankruptcy ¶ 7.01 (Alan N. Resnick & Henry J. Sommer, 15th ed. rev.2006).

Indeed, “every state legislature[has] enacted statutory and constitutional provisions that limit[] or entirely prohibit!] imprisonment for debt.” Becky A. Vogt, State v. Allison: Imprisonment for Debt in South Dakota, 46 S.D. L. Review 334, 335 (2001) (internal quotation and citation omitted). The bankruptcy act passed by Congress in 1841 was the first in world history allowing individuals to obtain voluntary discharge of their debts. Jason K. Kilborn, Mercy, Rehabilitation, and Quid Pro Quo: A Radical Reassessment of Individual Bankruptcy, 64 Ohio St. L.J. 855, 858-59 (2003).

Although American bankruptcy law affords honest debtors civil remedies as a substitute for criminal punishment, Congress has always provided for the imposition of criminal penalties for those who abuse the bankruptcy system. The early enactments of Congress criminalized fraudulent and perjurious acts by debtors and creditors in connection with a bankruptcy. Craig Peyton Gaumer, Bankruptcy Fraud: Crime and Punishment, 43 S.D. L.Rev. 527, 532 (1998). With some modifications, these core bankruptcy criminal provisions have remained intact to this date, with the essential components codified into 18 U.S.C. § 152.

Id. at 532-33. In 1994, as part of the Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, Congress enacted a new bankruptcy crime statute. The centerpiece of the new criminal provisions, as codified in 18 U.S.C. § 157, was intended to “deter[ ] a person from using the bankruptcy process to further[] fraudulent schemes.” Gaumer, 43 S.D. L. Review at

Section 157 was “consciously patterned on the federal mail fraud statute.” 1 Collier on Bankruptcy ¶ 7.07[l][a]. As opposed to the historic bankruptcy crimes, as exemplified in § 152, which concerns acts committed in the bankruptcy context, the focus of § 157 is a fraudulent scheme outside the bankruptcy which uses the bankruptcy as a means of executing or concealing the artifice.

Specifically, § 157, the bankruptcy fraud statute under which Milwitt was charged, provides that: A person who, having devised or intending to devise a scheme or artifice to defraud and for the purpose of executing or concealing such a scheme or artifice or attempting to do so— (1) files a petition under title 11, including a fraudulent involuntary bankruptcy petition under

section 303 of such title; (2) files a document in a proceeding under title 11; or (3) makes a false or fraudulent representation, claim, or promise concerning or in relation to a proceeding under title 11, at any time before or after the filing of the petition, or in relation to a proceeding falsely asserted to be pending under such title, shall be fined under this title, imprisoned not more than 5 years, or both. 18 U.S.C. § 157. In enacting § 157, Congress made it quite clear that the new crime was a specific intent crime.

As Representative Brooks, who was Chair of the House Judiciary Committee and a sponsor of the legislation, stated in his official floor statement: An essential element of the new fraud action, as with other fraud actions, is requirement of proof beyond a reasonable doubt of a specific intent to defraud. Under no circumstance is this

section to be operative if the defendant is adjudicated as having committed the act alleged to constitute fraud for a lawful purpose. 140 Cong. Rec. H10752' (daily ed., Oct. 4, 1994) (statement of Rep. Brooks).

While we have not interpreted 18 U.S.C. § 157, we have discussed the elements of 18 U.S.C. § 1341 and 18 U.S.C. § 1343, the mail and wire fraud statutes upon which § 157 was modeled, stating: [t]o allege a violation of the wire and mail fraud provisions, we have required only that the government show that there is 1) a scheme to defraud, 2) a use of the mails or wires in furtherance of the scheme, and 3) a specific intent to deceive or defraud. United States v. Bonallo, 858 F.2d 1427, 1433 (9th Cir.1988).

The specific intent to deceive or defraud element of the mail and wire fraud crimes requires the prosecution to prove that the defendant intended to defraud an identifiable individual. In McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), the Supreme Court held that the mail fraud statute only reached the loss of money and property and not to “the intangible right of the citizenry to good government.” Id. at 356, 107 S.Ct. 2875 (overruled on this point by 18 U.S.C. § 1346).

There, the indictment identified the scheme as devised “to defraud the citizens and government of Kentucky.” Id. at 353, 107 S.Ct. 2875. In reversing the mail fraud convictions, the Court noted that for the jury instruction to charge a crime under the mail fraud statute, it must show a loss of money or property from “the Commonwealth itself,” the victim identified in the jury instructions. Id. at 360, 107 S.Ct. 2875. Further, the government could not rely on evidence of the loss of property to another individual to support the conviction because that individual had not been identified in the jury instructions.

Id. at 361, 107 S.Ct. 2875. We applied McNally in United States v. Mitchell, 867 F.2d 1232 (9th Cir.1989), a case involving an alleged scheme to defraud a city and its citizens. In reversing the conviction, we held that “[ajlthough both indictments alleged a scheme to obtain money and property, neither alleged a scheme to obtain them from the governmental body.” Id. at 1233. Similarly, in United States v. Lew, 875 F.2d 219 (9th Cir.1989), we cited McNally, stating that “the Court made it clear that the intent must be to obtain money or property from the one who is deceived.” Id. at 221.

Given all of these considerations, we conclude that the crime of bankruptcy fraud under 18 U.S.C. § 157 requires a specific intent to defraud an identifiable victim or class of victims of the identified fraudulent scheme. III Applying these legal principles to the case at hand, we conclude that the evidence tendered by the government is insufficient to support the verdict of bankruptcy fraud pursuant to 18 U.S.C. § 157.

As we have noted, the government charged Milwitt with “fraudulently obstructing] the creditors’ legal right to collect back rents, and repossess the properties.” In sum, the fraudulent scheme was one to prevent the landlords from exercising legal rights, and the alleged victims were the landlords. The required bankruptcy nexus alleged was the filing of sham

Chapter 13 bankruptcy petitions. There were no allegations in the indictment concerning a scheme to defraud the tenants, nor were the tenants identified as victims of the fraudulent scheme. At trial, the government attempted to prove an entirely different case under an entirely different theory. The government’s theory at trial was that the fraudulent scheme was to deprive the tenants of money, which the tenants gave Milwitt under the false pretenses that he was acting on their behalf to forestall eviction proceedings.

Throughout the trial, the government referred to the tenants, rather than the landlords, as the victims of Milwitt’s fraudulent scheme. For example, in its opening statement, the government began by telling the story of some of the tenants who sought help from Milwitt. It went on to describe Milwitt’s overall scheme and then stated that “[n]one of the victims authorized [Milwitt] to file bankruptcy on their behalf.” Milwitt never filed bankruptcy on behalf of anybody but the tenants.

Further, the government stated, [t]he evidence will show that the defendant intended to defraud the [tenants named in the bankruptcy petitions.] He did it by passing himself off as an attorney and by telling them he would be representing them and performing various legal services. The government argued that the effect of the bankruptcy filing was that it allowed Milwitt to continue to represent to the tenants that he was taking care of their legal issues with their landlords.

As the government stated, the defendant’s supposed clients were aware that they were not being evicted despite having received this notice to be evicted, and the defendant led them to believe that that was because he was working diligently on their behalf, he was defending them again [sic] these eviction proceedings. [The tenants] had no idea that a bankruptcy stay had anything to do with the delay — with the halt in the eviction proceedings.

The government went on to present evidence of fraud on the tenants throughout its case in chief, presenting nine witnesses — the six tenants, a former employee of the publisher of the phone book in which Milwitt advertised, an expert witness who testified about the effects of the bankruptcy filing and the unlawful detain-er process, and the owner of the mail services business where Milwitt rented a mailbox. Each of the tenants testified about their living situations, the conditions that prompted them to contact Milwitt, and their experiences during the time they thought Milwitt was representing them.

Each of the tenants testified that Milwitt informed them that they had a right to withhold rent. Further, after receiving notices of judgments against them, Milwitt provided various explanations for why they would not have to pay them or why they would not have to move out. The phone book employee provided testimony about working with Milwitt on placing the yellow pages advertisements. In his dealings with the phone book company, Milwitt represented himself as “Joe Castle” and stated that he was either the advertising director or office manager for AP Assistance.

An expert provided testimony about both bankruptcy and landlord-tenant law, including testimony regarding the impact of a bankruptcy petition on the filer’s creditors. Finally, the owner of the mail services business provided testimony about Milwitt renting a mailbox at her store and an incident in which she overheard him tell another customer that he could help because he was an attorney. None of the landlords testified nor was evidence introduced about any losses they experienced because of Milwitt’s actions or how Milwitt’s actions might have caused such losses.

Rather, the only connection made between Milwitt’s actions and loss to the landlords came through the tenants’ testimony regarding the amount of rent withheld and the expert witness’s testimony regarding the effect of bankruptcy petitions on outstanding judgments and pending actions. No evidence was presented concerning any scheme to defraud creditors, only debtors. There was no proof that Milwitt received or sought any money or other consideration from the landlords, only that he defrauded the tenants.

The proof, in fact, tended to show that the landlords were “slum lords” with a despicable record of repair and maintenance. Indeed, the government presented evidence that the tenants likely had valid claims against the landlords, justifying the withholding of rent. Not only did the evidence fail to show that the landlords were being wrongfully denied money and access to legal recourse, but the actual bankruptcy petitions did not seek to discharge the debt owed to the landlords. Rather, the petitions were filed pursuant to

Chapter 13, which does not contemplate outright discharge of debts after liquidation of non-exempt assets, but instead involves adjustment of debts of an individual with regular income through a court-approved plan of payment. In sum, when the government rested its case, it had presented no proof that there was a scheme to defraud the landlords, much less that the bankruptcy petitions had been filed as a means of executing or concealing the scheme.

Rather, the evidence showed that the tenants were likely justified in not paying the landlords; that the fraudulent scheme was one by Milwitt to deprive the tenants of money by fraudulently representing to them that he was representing their interests against the landlord; and that the purpose of the bankruptcy filing was to conceal the fraud from the tenants. After the government rested, the court presented counsel with the jury instructions it intended to give.

The instruction at issue described the third element of bankruptcy fraud as requiring the jury to find that “the defendant acted with the intent to defraud a creditor of any person named in the corresponding bankruptcy petition.” The government asked the court to reconsider the instruction, contending that it construed the indictment too narrowly by requiring proof that Mil-witt intended to defraud a creditor rather than a tenant based on the general scheme described by the indictment, including the fraud on the tenants.

The court refused to change the instruction based on paragraph six of the indictment, which states: By filing the sham petitions, the defendant fraudulently interfered with the processes of the United States Bankruptcy Court, and fraudulently obstructed the creditors’ legal right to collect back rents, and repossess the properties.

After learning of the court’s intended instruction, the government focused its closing argument on demonstrating that the landlords were the indirect victims of the overall scheme to defraud, while the tenants were the “primary mechanisms of the fraud.” Essentially, the government argued that Milwitt “directly deceiv[ed] the clients and indirectly deceiv[ed] the landlords.” Therefore, as the government itself stated in its closing argument, it had to prove that “[Milwitt] had the intent ... for the fraud scheme to result in money in his pockets from [the landlords].” However, the government acknowledged, the scheme “was about paying money for himself. ...

He extracted filing fees for phony lawsuits, lawsuits that he claimed he was filing.... And also it was to get ... fees for being a lawyer, which he wasn’t.” All of these filing fees and attorneys fees were payed directly from the tenants to Milwitt. Further, the government recognized that “[t]he bankruptcy petitions were used to ... cover the fact that the defendant was actually not a lawyer and he therefore could not actually file legal papers as he claimed he could and claimed he was doing.

Instead, he was secretly filing bankruptcy petitions that anybody could file.” The government argues on appeal that the evidence demonstrates that Milwitt knew that he would be depriving the landlords, at least temporarily, of their judgments against the tenants and possession of their properties by filing the bankruptcy petitions. However, the evidence demonstrates that Milwitt’s intent was to prevent the tenants from discovering his fraud by filing the bankruptcy petitions. That he might have known that the filing would stay the landlords’ claims is not enough to demonstrate specific intent. See Bloch v.

United States, 221 F.2d 786, 788 (9th Cir.1955) (reversing a tax fraud conviction where the judge instructed that “[t]he presumption is that a person intends the natural consequences of his acts, and the natural inference would be if a person consciously, knowingly and intentionally did not set up his income, and thereby the government was cheated or defrauded of taxes, that he intended to defeat the tax.”). Further, the use of a

Chapter 13 bankruptcy filing in order to adjust debts is perfectly proper. The Bankruptcy Code specifically addresses lessor-lessee relations. See, e.g., 11 U.S.C. § 363. Had the tenants consulted with a legitimate attorney, that attorney might well have recommended a legal course that involved a

Chapter 13 bankruptcy filing, especially if an attorney had been consulted after Mil-witt had allowed the default judgments to be entered against the tenants without their knowledge. Under the mail fraud statute, intent to defraud may be established by circumstantial evidence, see, e.g., United States v. Cloud, 872 F.2d 846, 852 n. 6 (9th Cir.1989), and there is no reason not to apply this principle to the crime of bankruptcy fraud.

However, as we have noted, bankruptcy fraud is a specific intent crime, and even the circumstantial evidence presented at trial was insufficient to prove that Milwitt had a specific intent to defraud the landlords rather than the tenants. There was no proof offered at trial that Milwitt devised a scheme to defraud creditors of money and filed petitions in bankruptcy with specific intent to execute or further the scheme. Therefore, we conclude that the evidence presented at trial is insufficient to establish the crime.

IV The government also argues for the first time on appeal that Milwitt committed a crime simply by filing bankruptcy petitions when there was evidence that at least some of the the debtors had sufficient assets to pay off their debts. We must forcefully reject this argument. First, until the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. 109-8, 119 Stat. 23 (2005) (“the 2005 Act”), which does not apply to this case, there was no statutory means testing at all in bankruptcy.

Second, this notion is a serious misapprehension of the nature of a filing of a voluntary petition in bankruptcy under

Chapter 13 of the Bankruptcy Code. The entire idea of a

Chapter 13 filing is to allow an individual debtor with a regular income to adjust his or her debts through a plan of repayment approved by the bankruptcy court. The requirements for

Chapter 13 relief “bar[s] debtors from

Chapter 13 eligibility if they are unable to make plan payments....” 2 Collier ¶ 109.06[1] (emphasis added). In short, at the time the petitions at issued were filed, not only was it not a crime for a debtor to file a petition under

Chapter 13 when the debtor had sufficient means to make payments; it was a requirement of

Chapter 13 relief that the debtor have sufficient means to do so. Third, bankruptcy fraud under § 157 cannot be predicated only on acts that occur within the bankruptcy context that are untethered to the underlying fraudulent scheme. Other provisions of the bankruptcy criminal statutes address those acts, including § 152. However, bankruptcy fraud under § 157 must be related to the alleged fraudulent scheme. As Representative Brooks put it in his floor statement: It would also not be a crime under this

section for a person to make a false statement or promise concerning a proceeding under title 11, as long as the false statement or promise was not made as part of a scheme to defraud involving the bankruptcy proceeding. Similarly, a person who conveys incorrect information about the pendency of a bankruptcy or the planned filing of a bankruptcy case would not be within the scope of this

section unless that information was conveyed fraudulently and to further a fraudulent scheme. 140 Cong. Rec. H 10771 (daily ed. Oct. 4, 1994). Finally, which perhaps goes without saying, the government did not charge the offense upon which it now relies. In short, the government’s new contention that Mil-witt could be liable for criminal bankruptcy fraud under § 157 for merely filing a voluntary petition under

Chapter 13 when the debtor has sufficient means to repay the debts is not viable. V Because the evidence presented was insufficient to sustain the verdict, we reverse the conviction and need not reach any other issue urged by the parties. REVERSED. Dissent by Judge WALLACE. . Milwitt was also charged with six other counts of bankruptcy fraud and four counts of social security fraud in violation of 42 U.S.C. § 408(a)(7)(

B) related to petitions he filed in his own name. Those charges have been held in abeyance and are not relevant to this appeal. . Fraud on the Bankruptcy Court was not argued at trial, was not instructed and is not an issue on appeal. . The indictment goes on to name each of the six tenants on whose behalf Milwitt filed bankruptcy petitions as well as the case numbers and the dates those petitions were filed. .The government dismissed one count of bankruptcy fraud before trial. . Most of the few courts that have interpreted 18 U.S.C. § 157 have looked to 18 U.S.C. §§ 1341 and 1343 for guidance.

See, e.g., United States v. Wagner, 382 F.3d 598, 613 n. 3 (6th Cir.2004) (looking to analysis of the mail and wire fraud statutes in holding that actual reliance on the scheme to defraud is not an essential element of the crime); United States v. Daniels, 247 F.3d 598, 600 (5th Cir. 2001) (citing the constitutionality of the mail fraud statute in holding the bankruptcy fraud statute constitutional); see also, 1 Collier on Bankruptcy § 7.07[l][a], at 7-119 ("Section 157 is consciously patterned on the federal mail fraud statute. ... The parallels between

section 1341 and

section 157 are close.... In other contexts ... the Court has looked to decisions under the mail fraud statute when construing the new statutes. The same will follow for

section 157.”); but see United States v. Lee, 82 F.Supp.2d 389, 392 (E.D.Pa. 2000) ("Similar though the language of the bankruptcy fraud statute is to that of the various other fraud statutes, we cannot, particularly as a matter of what appears to be first impression, import wholesale into the bankruptcy fraud statute the thick judicial gloss that has been applied over the years to these other statutes.”). . Contrary to the government’s assertions, United States v. Crawford, 239 F.3d 1086 (9th Cir.2001), does not compel a contrary result.

Crawford was charged with wire fraud based on her use of interstate faxes to sell through an art dealer a valuable painting that she took from her office at UCLA. On appeal, she alleged insufficiency of evidence because ownership of the painting had not been established and, therefore, there was no identifiable victim. Id. at 1092. However, in Crawford, the fraudulent scheme was identified and proven, and the government established that Crawford knew that she had no ownership interest.

Crawford is in stark contrast with the instant case, in which the indictment was based on an entirely different fraudulent scheme and victims. The dissent essentially urges an expansion of Crawford to include evidence of fraudulent schemes other than the one upon which the prosecution was based. This expansive

interpretation would conflict with McNally. The dissent also contends that other circuits have reached a different conclusion. However, each of the cited cases involves a situation akin to Crawford in which there were identical schemes to defraud, but different named victims. This case involves a reliance on a different fraudulent scheme. . The petitions in.the case predate the effective date of the 2005 Act. See id. § 102. Under the 2005 Act, bankruptcy petitioners with relatively high incomes may be prevented from filing under

Chapter 7 and instead given the choice of converting to

Chapter 13 (where some debt must be repaid out of future income) or having their petitions dismissed and receiving no bankruptcy relief. The presumption prior to passage of the 2005 Act was that the debtor was entitled to relief under

Chapter 7 except upon a showing of substantial abuse. There is a new means test in the 2005 Act for individuals seeking

Chapter 7 relief. However, even under the 2005 Act, the means test does not affect eligibility for filing for relief under

Chapter 13, the

chapter under which the petitions in this case were filed; the new means test only affects the requirements for

Chapter 13 plan confirmation. Id. . , This is not to say, or imply, that there are no consequences for bankruptcy abuse, which may be subject to sanction under a variety of theories. Obviously, misrepresentations in a bankruptcy can lead to serious consequences, including potential bankruptcy crime charges under 18 U.S.C. § 152. However, the government does not allege that any affirmative misrepresentations were made in the

Chapter 13 bare petition filings; rather, the government argues that the act of filing a

Chapter 13 petition itself when the debtor has sufficient assets is a criminal act under § 157. . The dissent contends that the dispositive issues were not argued by the parties. We respectfully disagree. One of the central arguments presented by Milwitt was that the government's evidence of fraud against the landlords, rather than the tenants, was insufficient to sustain the verdict. The government was well prepared to address — and did address — the precise questions at issue.