United States v. James Atkins ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4864
JAMES WESLEY ATKINS,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4865
TALCO GROUP CORPORATION,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(CR-97-7)
Submitted: March 3, 1999
Decided: June 17, 1999
Before WILKINS, NIEMEYER, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Barry L. Proctor, Abingdon, Virginia, for Appellants. Robert P.
Crouch, Jr., United States Attorney, Richard A. Mountcastle, Assis-
tant United States Attorney, Thomas E. Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
James Wesley Atkins appeals from his convictions for bankruptcy
fraud and related crimes and from his seventy-eight month prison sen-
tence. On appeal, Atkins alleges there was insufficient evidence pre-
sented at trial to support his convictions under 18 U.S.C.A. §§ 152(1),
152(8) (West Supp. 1998) and that he should have received credit for
acceptance of responsibility under U.S. Sentencing Guidelines
Manual ("USSG") § 3E1.1 (1997). For the reasons that follow, we
affirm.
In his first issue, Atkins freely admits he diverted funds from an
escrow account to his own personal use but maintains that this con-
duct fails to violate the statutory prohibitions against bankruptcy
fraud contained in 18 U.S.C.A. §§ 152(1), 152(8). Adkins argues that
his actions support a showing of larceny but fail to support the ele-
ment of "concealment."1 This court will sustain the jury's verdict if
there is substantial evidence, taking the view most favorable to the
Government, to support it. See Glasser v. United States, 315 U.S. 60,
80 (1942). Substantial evidence is evidence that a reasonable fact-
finder would find as adequate and sufficient to support a conclusion
of a defendant's guilt beyond a reasonable doubt. Id.Viewing the evidence, as we are required, reveals the following.
Atkins owned and operated a real estate loan closing service known
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1 Atkins does not allege any other deficiency of proof other than con-
cealment.
2
as Talco Group, Inc. In that capacity, Atkins conducted a real estate
closing for the sale of real property by Big Fist Coal Company, which
had filed for Chapter 11 bankruptcy protection. Initially, Atkins
appropriately placed the $40,815.01 in proceeds from the Big Fist sale
into his escrow account at Central Fidelity National Bank; the money
was to remain there until Atkins was further instructed, as competing
creditor banks had made claims to the proceeds. On October 3, 1995,
however, Atkins debited the escrow account for $40,815.01, and the
next day placed the money into another account in the name of Talco
Group Escrow Agent at the Charter Federal Savings Bank.2 Atkins
also prepared false documents purporting to show that the $40,815.01
was actually sent to the bankruptcy court, rather than diverted to his
own account.
Based upon these facts, we find that substantial evidence supports
a finding that Atkins attempted to conceal his misappropriation of
funds from the bankruptcy court. He secretly took the funds out of his
escrow account and then created false documents to conceal the trans-
fer. Further, other courts have concluded that such diversions may
constitute concealment. See generally United States v. Weinstein, 834
F.2d 1454, 1462 (9th Cir. 1987) (concealment need not consist of
secretly appropriating funds for one's personal use; it is sufficient if
one withholds knowledge of assets that the trustee should be told);
United States v. Turner, 725 F.2d 1154, 1157 (8th Cir. 1984) (sale of
car not recorded in the corporation's books constituted concealment).
We review the district court's decision to deny Atkins credit for
acceptance of responsibility under USSG § 3E1.1 for clear error. See
United States v. Myers, 66 F.3d 1364, 1372 (4th Cir. 1995). Under
USSG § 3E1.1(a) a defendant who clearly shows acceptance of
responsibility for an offense may have his offense level decreased by
two levels. The burden is on the defendant to establish by a prepon-
derance of the evidence that he is entitled to the adjustment. See
United States v. Urrego-Linares, 879 F.2d 1234, 1238-39 (4th Cir.
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2 The amount deposited at Charter Federal was $40,809.01, due to a six
dollar cashier's check fee charged by Central Fidelity. Because of
Atkins' misappropriation of funds from his escrow account, that account
was ultimately closed and the bankruptcy court never received the
$40,815.01 from the sale.
3
1989). The adjustment, however, is not meant to apply where a defen-
dant has put the government to its burden of proof at trial. See USSG
§ 3E1.1, comment. (n.2); United States v. Castner, 50 F.3d 1267,
1279 (4th Cir. 1995).
We find Atkins has failed to show he clearly accepted responsibil-
ity for his offense. First, he put the Government to the burden of trial.
See Castner, 50 F.3d at 1279-80. Second, as noted by the district
court at sentencing, Atkins blamed his crimes on poor business condi-
tions, rather than personally owning up to his transgressions.3
Accordingly, we affirm Atkins' convictions and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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3 The district court found Adkins' excuse particularly troubling as testi-
mony from Atkins' employees revealed the office was, in fact, very busy
during the relevant time period.
4