United States v. Serrano ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-20442
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER MERHAN,
Defendant-Appellant.
____________________
No. 98-20453
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DHONOVAN SERRANO,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(97-CR-191-11)
_________________________________________________________________
August 24, 1999
Before SMITH, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:1
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Appellants having been convicted, inter alia, for conspiracy
to commit both bank fraud and bank larceny, primarily at issue are
the convictions’ evidentiary sufficiency and Sentencing Guidelines’
increases. We AFFIRM.
I.
In May 1996, a predecessor to Wells Fargo Bank hired
Christopher Merhan as a teller at its branch in Houston, Texas.
Typically, Merhan worked in the mornings and, with supervisor
Kenneth Chandler, was responsible for opening the branch.
For security reasons, the three-number combination to the main
vault door was divided among two people. To open the vault each
morning, Merhan was given the first two numbers; Chandler, the
last. Unknown to his superiors, Chandler, because sometimes late
to work, gave Merhan that last number, so that he, alone, could
open the vault.
At trial, the Government claimed that Merhan became involved
in a bank fraud scheme in early 1997. The leader was Tai Duc Lai,
known as “Calvin”. Merhan and co-defendant Dhonovan Serrano were
acquainted with Calvin.
Calvin testified that he was able to make unauthorized
withdrawals from bank accounts as a result of information Merhan
gave him. Sometimes using Serrano as a conduit, Merhan would
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supply Calvin with account information, including account numbers,
balances, and the names and addresses of the account holders.
Calvin then recruited “runners”, who would visit bank branches and,
using false Texas drivers’ licenses provided by Calvin, withdraw
money from the accounts. In return, the runner and Merhan received
payment out of the fraudulently withdrawn funds.
The Government presented evidence that, the day after Merhan
handled a deposit for the account of Quaker Loh on 13 March 1997,
an unauthorized withdrawal of $2400 was made from it. Another
unauthorized withdrawal, in the amount of $2500, was made a few
days later; Merhan was the teller for this withdrawal.
Further, Frank Bokeloh’s account suffered unauthorized
withdrawals totaling $19,000 during the first two days of April
1997. The bank’s computer records showed that Merhan had examined
Bokeloh’s account information for approximately six minutes on 21
March 1997, although no teller transaction involving the account
occurred that day.
Merhan and Serrano were also charged with being involved in a
bank larceny, for which Calvin arranged a staged robbery at
Merhan’s branch. Merhan told police that, after arriving at work
at 7:00 a.m. on 16 May 1997, two individuals approached his vehicle
and forced him at gunpoint to enter the bank and de-activate the
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alarm; that the robbers instructed him not to enter the “duress
code”, a secret number for a robbery in progress alert, which the
robbers knew was 1790; that, after telling the robbers that he did
not know both sets of numbers needed to open the main vault, they
told him they knew he had the complete combination and forced him
to open it; that the robbers then bound him and took approximately
$392,000 from the vault; and that he was able to free himself and
call the police.
Those involved in the “robbery” testified, however, that it
was staged using inside information from Merhan. Calvin testified
that Merhan provided him with information regarding the bank’s
operating procedures, the location of alarms and cameras, the alarm
codes, and the cash shipment schedule, and also gave him a
schematic drawing of the inside of the branch. Calvin had then
recruited several accomplices.
Calvin also testified that, shortly before the staged robbery,
he alerted Serrano, who then contacted Merhan. Telephone records
confirmed that, during the period before the staged robbery, Merhan
made several calls to Calvin and Serrano.
Tuyen Vi Chau, known as “Richard”, one of the “robbers” who
approached Merhan while he was in his vehicle, testified that he
understood that the teller was a participant in the “robbery”; that
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it was staged; and that, although he did not know the insider’s
name, Calvin had told him that the insider was a Filipino who drove
a white Civic hatchback. Both characteristics fit Merhan.
Following the staged robbery, the accomplices divided the
stolen money. Later that day, Calvin met Serrano and handed him a
shoe box with $60,000 in cash for him to deliver to Merhan as his
share of the proceeds. Following the larceny, Serrano spent large
amounts of cash, including purchasing two airline tickets to Hong
Kong costing approximately $9,000.
A few months after the “robbery”, Merhan and Serrano, along
with numerous others, were charged with conspiracy to commit bank
fraud and bank larceny (count I), bank fraud (counts II and III),
entering with intent to commit bank larceny (count IV), bank
larceny (count V), and receiving stolen money (count VI).
Following a jury trial, Merhan and Serrano were convicted for
conspiracy (count I), Merhan for bank fraud (count II), and Serrano
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for receipt of stolen money (count VI); each was acquitted on the
other counts. Merhan’s sentence included 57 months in prison and
$432,000 in restitution; Serrano’s, 46 months in prison and
$464,000 in restitution.
II.
A.
Serrano first contests the denial of his motion to suppress
evidence seized during a search of his apartment and automobile,
claiming that his written consent was not voluntary. As he was
leaving his apartment in August 1997, he was arrested by a Houston
police officer. FBI Agents soon arrived and obtained written
consent for the search.
To be valid, consent must be both free and voluntary. E.g.,
United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993). “The
government has the burden of proving, by a preponderance of the
evidence, that the consent was voluntary.” Id. This is a question
of fact to be “determined from the totality of the circumstances
surrounding the search”. United States v. Morales, 171 F.3d 978,
982 (5th Cir. 1999) (citing Schneckloth v. Bustamonte, 412 U.S.
218, 227 (1973)).
For this, six factors must be considered: “(1) the
voluntariness of the defendant’s custodial status; (2) the presence
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of coercive police procedures; (3) the extent and level of the
defendant’s cooperation with the police; (4) the defendant’s
awareness of his right to refuse to consent; (5) the defendant’s
education and intelligence; and (6) the defendant’s belief that no
incriminating evidence will be found”. Id. We review a post-
hearing denial of a suppression motion under a “particularly
strong” clearly erroneous standard, because the judge was able to
observe the witnesses. Kelley, 981 F.2d at 1470 (quoting United
States v. Sutton, 850 F.2d 1083, 1086 (5th Cir. 1988)).
Of course, that Serrano was in custody when he gave his
consent does not ipso facto invalidate it. United States v.
Watson, 423 U.S. 411, 424 (1976). At the suppression hearing,
Serrano claimed that his consent was not voluntary because an FBI
Agent told him that he would be more likely to make bond if he
cooperated; the Agent denied making the statement. For this
credibility call, the district court’s ruling was not clearly
erroneous.
B.
Appellants challenge the evidentiary sufficiency for their
convictions. For properly preserved sufficiency challenges, we
will affirm if, when viewing the evidence in the light most
favorable to the verdict and accepting the credibility choices of
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the jury, a rational jury could have found that the Government
proved, beyond a reasonable doubt, the essential elements of the
charged crime. E.g., United States v. Guerrero, 169 F.3d 933, 938
(5th Cir. 1999) (citing United States v. Pankhurst, 118 F.3d 345,
351 (5th Cir.), cert. denied, 118 S. Ct. 630 (1997)). Serrano and
Merhan preserved this standard of review by moving for judgment of
acquittal at the close of the evidence. FED. R. CRIM. P. 29(a);
Guerrero, 169 F.3d at 938; Pankhurst, 118 F.3d at 352.
1.
Merhan first asserts that the evidence is insufficient to
support his convictions for conspiracy to commit bank fraud (one of
the two charged objects of the conspiracy; a similar challenge to
the other object is discussed infra) and for bank fraud.
a.
To establish a conspiracy under 18 U.S.C. § 371, the
Government “must prove beyond a reasonable doubt (1) that two or
more people agreed to pursue an unlawful objective; (2) that the
defendant voluntarily agreed to join the conspiracy; and (3) that
one or more of the members of the conspiracy committed an overt act
to further the objectives of the conspiracy”. United States v.
Campbell, 64 F.3d 967, 975 (5th Cir. 1995).
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Merhan asserts that his conspiracy conviction rested primarily
on Calvin’s testimony, which he claims was insufficient to persuade
a rational jury of his guilt. In this regard, Merhan maintains that
numerous other people known to Calvin had ties to the bank and
could have provided the account information.
However, “a [conspiracy] conviction may rest on the
uncorroborated testimony of an accomplice, even one who has chosen
to cooperate with the government in exchange for leniency, as long
as the testimony is not insubstantial on its face”. United States
v. Posada-Rios, 158 F.3d 832, 861 (5th Cir. 1998), cert. denied,
119 S. Ct. 1280, 1487, 1792 (1999). “Testimony is incredible as a
matter of law only if it relates to facts that the witness could
not possibly have observed or to events which could not have
occurred under the laws of nature.” Id.
Calvin testified that Merhan supplied him with information
regarding both Loh and Bokeloh’s accounts and that Merhan received
a share of the unlawfully-obtained money. Needless to say, this
testimony is not “insubstantial on its face”. Moreover, bank
records demonstrating that Merhan had accessed the Loh and Bokeloh
accounts, and Jimmy Ngo’s testimony linking Merhan to the fraud,
corroborate Calvin’s testimony and provide further evidence from
which a rational jury could find guilt.
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b.
Merhan relies on essentially the same bases for his
sufficiency challenge to his bank fraud conviction. To establish
such fraud, pursuant to 18 U.S.C. § 1344(1), the Government must
prove that Merhan “knowingly execute[d], or attempt[ed] to execute,
a scheme or artifice — (1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, ... or other property owned
by, or under the custody or control of, a financial institution, by
means of false or fraudulent pretenses, representations, or
promises”. See also United States v. Schnitzer, 145 F.3d 721, 734
(5th Cir. 1998); Campbell, 64 F.3d at 975.
The above-described evidence of Merhan’s involvement in the
fraud scheme was also sufficient to prove beyond a reasonable doubt
that he committed § 1344(1) bank fraud. See United States v.
Barakett, 994 F.2d 1107, 1111 (5th Cir. 1993) (“While section
1344(1) prohibits only crimes directed at financial institutions,
we have not held that the statute punishes only schemes directed
solely at institutional victims”); United States v. Church, 888
F.2d 20, 23 (5th Cir. 1989) (even proof of extremely remote risk of
loss to bank suffices).
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2.
As noted, Merhan also claims that the evidence was
insufficient to sustain a conviction for conspiracy to commit bank
larceny (the other charged object). He relies primarily on his
acquittal on the substantive bank larceny counts.
This acquittal-based contention is meritless. Needless to
say, acquittal on substantive charges does not mandate acquittal on
a corresponding conspiracy charge. E.g., United States v. Duvall,
846 F.2d 966, 975-76 (5th Cir. 1988).
Three persons testified that there was an agreement between
two or more persons to conduct a staged robbery of the branch.
Calvin testified that Merhan agreed to join the conspiracy and
provided information to the “robbers”; two other co-conspirators
testified that they knew Merhan to be the bank “insider” assisting
in staging the robbery. And, more than one conspirator committed
an overt act in furtherance of the conspiracy. Although the
evidence showing Merhan’s participation in the conspiracy is
primarily accomplice testimony, it is not “insubstantial on its
face”. Posada-Rios, 158 F.3d at 861.
3.
Serrano first claims that the evidence did not prove that he
was linked to the conspiracy, or agreed to assist with the staged
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robbery, or committed any overt act. But, Calvin and other co-
conspirators testified that Serrano acted as an intermediary
between Calvin and Merhan during the bank fraud and bank larceny
schemes; a co-conspirator testified that Serrano met with Calvin
and Merhan to discuss the staged robbery; and there was evidence
that Serrano made several large cash expenditures following the
staged robbery.
4.
To sustain a conviction under 18 U.S.C. § 2113(c) for receipt
of stolen money, Serrano’s other conviction, the Government must
prove that (1) he “receive[d], possesse[d], store[d], barter[ed],
[sold], or dispose[d] of” (2) money stolen from a bank (3) with
knowledge that the money was stolen. See United States v. Buchner,
7 F.3d 1149, 1152-53 (5th Cir. 1993) (§ 2113(c) is “intended for
those persons who receive the stolen property from the bank
robber”).
Serrano claims that there was insufficient proof that he knew
the money was stolen from the bank. But, Calvin testified that
Serrano assisted him and Merhan in planning the staged robbery; and
that, after the robbery, he gave Serrano a shoe box containing
$60,000. Another co-conspirator testified that Serrano met with
Merhan and Calvin to discuss the larceny. Again, this accomplice
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testimony is not “insubstantial on its face”. Posada-Rios, 158
F.3d at 860.
C.
Appellants challenge the district court’s multiple mistrial
denials when the jury indicated it was unable to reach a verdict.
It sent several notes to the judge along this line.
On the first day, the jurors advised that they were
“deadlocked”. Appellants moved for a mistrial. Instead, the judge
instructed the jurors to resume deliberations the next morning.
After deliberating for a total of about eight hours, the
jurors again advised that they were “locked”. Again, Appellants
moved for a mistrial. The district court refused to grant one and
gave the jury a modified Allen charge.2 Subsequently, the jury
requested that the testimony of five Government witnesses be read.
Appellants, once again, moved for a mistrial. The district court
instead instructed the jury to designate the portions of testimony
it wished to have read.
2
See Allen v. United States, 164 U.S. 492, 501-02 (1896) (not
error for a court to render supplemental instructions to a
deadlocked jury). The trial judge may remind the jurors of their
duty to reach a verdict and instruct them to consider the opinions
of the other jurors. Id. “While, undoubtedly, the verdict of the
jury should represent the opinion of each individual juror, it by
no means follows that opinions may not be changed by conference in
the jury room.” Id. at 501.
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The final note asked: “If we find one defendant guilty of
Count 1, part A [conspiracy to commit bank larceny], and the other
defendant guilty of Count 1, part B [conspiracy to commit bank
fraud], does this make each defendant guilty of the entire Count
1?” Urging this indicated that the jurors were seeking a compromise
verdict, Appellants again moved for a mistrial. Instead, the
district court instructed the jurors to continue their
deliberations.
A mistrial denial is reviewed for abuse of discretion. United
States v. Sylvester, 143 F.3d 923, 929 (5th Cir. 1998). The first
two denials, which followed jury deadlock notes, were not such
abuses. When they transmitted the second note, the jurors had been
deliberating only slightly over eight hours. For example, our
court held that it was not an abuse of discretion to deny a
mistrial after the jury deliberated for seven days in a complex
bank fraud trial. United States v. Heath, 970 F.2d 1397, 1405-06
(5th Cir. 1992). The case against Merhan and Serrano was also
complex.
For the third denial, which corresponded to the testimony
request (written after the Allen charge), Appellants assert that
the jury note reveals that it interpreted the Allen charge as
requiring them to start over and surrender it conscientious
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conviction. The Allen charge specifically instructed the jurors
not to do so.
The final denial followed the note regarding the effect of
convictions. As before, Appellants maintain that the final two
notes revealed that the jury was trying to reach a compromise
verdict by surrendering its conscientious conviction because of a
coercive Allen charge. There is no evidence that a juror was
coerced; instead, the questions are consistent with conscientious
deliberations and the jury’s duty to render a decision in
accordance with the law.
Obviously, a district court has broad discretion to give an
Allen charge. United States v. Pace, 10 F.3d 1106, 1125 (5th Cir.
1993). Appellants do not challenge its content, and the
circumstances surrounding the charge being given were not coercive.
Heath, 970 F.2d at 1406 (deviation from approved charges cannot be
so prejudicial as to require reversal and circumstances must not be
coercive). As noted, our court found no abuse of discretion for an
Allen charge in a complex bank fraud trial where the jury remained
deadlocked after seven days of deliberation. Id. Likewise, giving
the Allen charge in this case, after less than two days of
deliberation, was not an abuse of discretion.
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D.
Appellants challenge their sentences on several bases.
Application of the Sentencing Guidelines is reviewed de novo;
factual findings, for clear error. E.g., Sylvester, 143 F.3d at
931. A sentence will be upheld unless it was imposed in violation
of law or as a result of an incorrect application of the
Guidelines, or if it is outside the range of the applicable
guideline and is unreasonable. E.g., United States v. Wyjack, 141
F.3d 181, 183 (5th Cir. 1998).
1.
Merhan claims that he was erroneously sentenced under the
theft guideline, U.S.S.G. § 2B1.1, rather than the fraud guideline,
resulting in a higher base offense level. U.S.S.G. § 1B1.2(d) (“A
conviction on a count charging a conspiracy to commit more than one
offense shall be treated as if the defendant had been convicted on
a separate count of conspiracy for each offense that the defendant
conspired to commit”); see United States v. Fisher, 22 F.3d 574,
576 (5th Cir. 1994) (Ҥ 1B1.2(d) governs the application of the
Sentencing Guidelines to multiple-object conspiracies”).
Merhan acknowledges that, in accordance with § 1B1.2(d), the
district court found, beyond a reasonable doubt, that bank larceny
was an object of the conspiracy. See United States v. Manges, 110
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F.3d 1162, 1178 (5th Cir. 1997), cert. denied, 118 S. Ct. 1675
(1998) (district court may sentence on more serious of two charged
conspiracies if “district court itself would have convicted
[defendant] on that basis”); United States v. Cooper, 966 F.2d 936,
941 (5th Cir. 1992). He claims, however, insufficient evidence for
that finding, because he was acquitted of the substantive bank
larceny charges. But, as noted, that finding was not precluded by
the bank larceny acquittal. See Duvall, 846 F.2d at 975
(conspiracy and substantive counts are “separate and distinct
crimes” and “conviction on any count may stand if it is supported
by the evidence”); United States v. Jackson, 167 F.3d 1280, 1282
(9th Cir. 1999) (jury acquittal on substantive offense does not
prohibit application of § 1B1.2(d) at sentencing); see also Cooper,
966 F.2d at 941 (§ 1B1.2(d) properly applied where district court
found object of conspiracy was proven beyond reasonable doubt).3
2.
Appellants also assert that this § 1B1.2(d) application
deprived them of their Sixth Amendment right to trial by jury. Our
court has held otherwise. Manges, 110 F.3d at 1179 n.16.
3
Serrano adopts Merhan’s issues presented here. It is unclear
whether this issue is one he can adopt; assuming he can, it
likewise fails.
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3.
The next challenge is to the relevant conduct used in
calculating offense levels. The amount of loss calculation is
reviewed for clear error. United States v. Sutton, 77 F.3d 91, 94-
95 (5th Cir. 1996).
Merhan contests the inclusion of the $392,000 loss from the
bank larceny; Serrano, any amount over the $60,000 he received from
Calvin. And, both contend they should not be held accountable for
funds related to the substantive counts of which they were
acquitted. However, the evidence supports the finding that each
conspired to commit bank larceny and bank fraud. The loss
calculations were not clearly erroneous.
4.
Appellants challenge each base offense level being enhanced by
two-levels for obstruction of justice, pursuant to U.S.S.G. §
3C1.1. We review only for clear error. E.g., United States v.
Gray, 105 F.3d 956, 971 (5th Cir.), cert. denied, 520 U.S. 1128,
1150, 1246 (1997).
“If the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
during the investigation, prosecution, or sentencing of the instant
offense, increase the offense level by 2 levels.” U.S.S.G. §
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3C1.1. Perjury is a type of conduct to which the enhancement
applies. U.S.S.G. § 3C1.1 application note 3(b). If the district
court finds that a defendant committed perjury at trial, the
obstruction enhancement is required. United States v. Gonzalez,
163 F.3d 255, 262 (5th Cir. 1999); United States v. Humphrey, 7
F.3d 1186, 1189 (5th Cir. 1993).
Merhan and Serrano’s presentence investigation reports (PSRs)
did not recommend the enhancement. The Government objected,
claiming perjury by Merhan at the trial and by Serrano at the
suppression hearing.
At Merhan’s sentencing, and adopted for Serrano’s which
followed immediately thereafter, the district court stated:
Counsel [for the Government] cites examples of
each defendant’s trial testimony that they
believe is perjurious, in effect, perjury.
... The Court sustains this objection and
finds by a preponderance of the evidence that
Merhan and Serrano committed perjury during
their trial testimony; therefore, a two-level
adjustment for obstruction of justice will be
given to each defendant.
(Emphasis added.)
a.
Merhan asserts that the court failed to make sufficient
factual findings; and, in the alternative, that his trial testimony
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does not support the enhancement. This insufficient findings claim
is based upon United States v. Dunnigan, 507 U.S. 87, 95 (1993),
which provides that, “if a defendant objects to a sentence
enhancement resulting from her trial testimony, a district court
must review the evidence and make independent findings necessary to
establish a willful impediment to or obstruction of justice, or an
attempt to do the same, under the perjury definition we have set
out”. Merhan claims failure to make specific findings that each
perjury element was satisfied.
But, a detailed and specific finding on each perjury element
is not required. Id. (“[I]t is preferable for a district court to
address each element of the alleged perjury in a separate and clear
finding” (emphasis added)). Rather, “[t]he district court’s
determination that enhancement is required is sufficient ... if ...
the court makes a finding of an obstruction of, or impediment to,
justice that encompasses all of the factual predicates for a
finding of perjury”. Id. at 94.
A witness commits perjury if he “gives false testimony
concerning a material matter with the willful intent to provide
false testimony, rather than as a result of confusion, mistake, or
faulty memory”. Id. The district court referenced the
Government’s objection, which specifically cited Merhan’s testimony
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that he did not provide Calvin with information for the bank fraud
and bank larceny. The district judge’s statements at sentencing
and his reference to the Government’s objection reflect a finding
that Merhan lied when he so testified. See Gonzalez, 163 F.3d at
263 (affirming obstruction enhancement where court adopted PSRs and
“expressly stated its finding that each defendant perjured
himself”).
Of course, perjury requires materiality. Although neither the
Government’s objection, nor the district judge’s statements,
specifically address this, our court has upheld similar obstruction
enhancements where, “[e]ven though there was no explicit finding by
either the trial or sentencing judge that this testimony was
material, [the defendant’s] testimony on this topic was obviously
‘material’ in that it was clearly ‘designed to substantially affect
the outcome of the case’”. United States v. Cabral-Castillo, 35
F.3d 182, 187 (5th Cir. 1994); see United States v. Como, 53 F.3d
87, 90 (5th Cir. 1995); United States v. Storm, 36 F.3d 1289, 1297
(5th Cir. 1994). Likewise, it is obvious that Merhan’s identified
statements went to the very heart of the case against him and were
designed to affect the verdict.
Merhan challenges finding his statements perjurious; but, as
demonstrated supra, that finding was not clearly erroneous. See
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Dunnigan, 507 U.S. at 95-96 (“Given the numerous witnesses who
contradicted respondent regarding so many facts on which she could
not have been mistaken, there is ample support for the District
Court’s finding.”); United States v. Laury, 985 F.2d 1293, 1309
(5th Cir. 1993).
b.
The Government, for sentencing, claimed perjury by Serrano at
the suppression hearing when he “unequivocally testified [1] that
the officers and agents who arrested him and searched his apartment
and automobile did not advise him of his right to refuse to consent
to the searches and [2] that he did not consent thereto”. But,
regarding the right to refuse, Serrano did not so testify; instead,
he testified that he was informed of that right. At oral argument
on appeal, the Government corrected its error.
Serrano maintains that the second part of the Government’s
objection – that he testified he did not give consent – is also
incorrect because he testified that he did sign the consent form.
The Government agrees that Serrano did testify in that limited
respect, but maintains that the objection more broadly refers to
his testimony that consent was not given voluntarily. As the
Government points out, the issue at the suppression hearing was not
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whether Serrano gave consent; it was whether that consent was
voluntary.
We agree with the Government’s interpretation. The same
district judge presided over the suppression and sentencing
hearings; he was aware that Serrano had given written consent, but
had testified that it was not voluntary. Also, the district judge,
as noted, found that both defendants had committed perjury. See
Gonzalez, 163 F.3d at 263.
Further, the Government’s objection to Serrano’s PSR
specifically addressed materiality, noting that, had the district
court credited Serrano’s suppression hearing testimony, a large
amount of evidence would have been suppressed and the Government’s
case weakened substantially. Therefore, the district judge, by
reference to the objection, made sufficient findings to support the
obstruction enhancement.4
4
At oral argument, Serrano claimed yet another reason why the
perjury finding was not supported by the record — his testimony
could have been the result of mistake. However, Serrano’s brief
challenges only the sufficiency of the stated bases for the
findings. Normally, issues raised for the first time at oral
argument will not be addressed. E.g., Whitehead v. Food Max of
Mississippi, Inc., 163 F.3d 265, 270 (5th Cir. 1998); United States
v. Miles, 10 F.3d 1135, 1137 n.3 (5th Cir. 1993), cert. denied, 118
S. Ct. 1201 (1998). The necessity for this rule is obvious. This
contention is not an exception to it.
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5.
Next, Merhan challenges his enhancement for abuse of a
position of trust: “If the defendant abused a position of public or
private trust, or used a special skill, in a manner that
significantly facilitated the commission or concealment of the
offense, increase [the offense level] by 2 levels”. U.S.S.G. §
3B1.3. According to the commentary, however, the adjustment does
not “apply in the case of embezzlement or theft by an ordinary bank
teller”. U.S.S.G. § 3B1.3, application note 1. “The application
of § 3B1.3 is a sophisticated factual determination reviewed under
the clearly erroneous standard.” United States v. Fisher, 7 F.3d
69, 70 (5th Cir. 1993).
The PSR (adopted by the district court) recommended the
enhancement. In response to Merhan’s objection, the probation
officer stated that Merhan’s behavior “in the bank larceny scheme
went beyond that of a mere teller” because he “provided the
security sensitive information regarding the bank vault
combination, [schematic] drawing of the facility[,] and security
codes to the co-conspirators”.
We must examine “the extent to which [Merhan’s] position
provides the freedom to commit a difficult-to-detect wrong”.
United States v. Brown, 7 F.3d 1155, 1161 (5th Cir. 1993) (quoting
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United States v. Hill, 915 F.2d 502, 506 (9th Cir. 1990)).
Generally, ordinary bank tellers do not occupy a position of trust
because, “although the teller’s position provides an opportunity to
embezzle money, reasonably diligent supervisors could easily detect
the wrongdoing after it has occurred”. Id.
Unlike an ordinary bank teller, Merhan was responsible for
opening the bank each morning; he knew the security codes; and the
bank gave him part of the combination to the main vault. See
Fisher, 7 F.3d at 70 (head cashier occupied position of trust
because she supervised another, could get money out of vault and
requisition money, and had only monthly spot checks). Further, his
supervisor trusted him with the rest of the combination. See id.
(noting that it was significant that defendant’s supervisor stopped
conducting spot checks because of her trust in defendant). These
factors placed him in a position of trust. See also United States
v. Gordon, 61 F.3d 263, 268 (4th Cir. 1995) (enhancement
appropriate where defendant, who was head teller with access to
security codes, facilitated armed robbery of bank); United States
v. Hathcoat, 30 F.3d 913, 919 (7th Cir. 1994) (“In determining
whether the defendant’s position was a position of trust, we must
analyze the situation from the perspective of the victim”).
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Additionally, Merhan’s position significantly contributed to
the facilitation of the staged robbery. He provided his co-
conspirators with information regarding the dates of money drops at
the bank, the security codes, the opening procedures, and the
bank’s interior floor plan. Further, he unlocked the bank door,
disarmed the security system, and opened the vault for his co-
conspirators on the day of the larceny. See United States v.
Johnson, 4 F.3d 904, 916 (10th Cir. 1993) (vault teller’s position
facilitated bank robbery where she instructed others how to rob
bank and avoid detection and handed the money to the robber).
6.
Appellants contest their § 5K2.6 upward departures for
possession of a firearm by one of the co-conspirators during the
bank larceny. Decisions to depart upward are reviewed for abuse of
discretion. Koon v. United States, 518 U.S. 81, 91 (1996).
Appellants first contend that the trial evidence was
insufficient to support the statement in the PSR that a firearm was
used during the staged robbery. However, they do not demonstrate
that the statement was erroneous; Merhan testified at trial that
one of the “robbers” put a firearm to his head; and both state in
their briefs that one of the “robbers” had a gun. Additionally,
one of the “robbers” initially told investigators that one of the
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co-conspirators had a firearm during the staged robbery. Merhan
and Serrano have failed to show that the information in the PSR
relating to the use of a weapon is materially untrue. See United
States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996) (district court may
credit evidence for sentencing purposes that has “some indicia of
reliability”) (quoting United States v. Shacklett, 921 F.2d 580,
585 (5th Cir. 1991)).
Appellants also claim that the district court’s findings were
insufficient for us to review the propriety of the departure.5
“Before a departure is permitted, certain aspects of the case must
be found unusual enough for it to fall outside the heartland of
cases in the Guideline.” Koon, 518 U.S. at 98; see also United
States v. McDermott, 102 F.3d 1379, 1384 (5th Cir. 1996). The
district court did not specifically discuss why the firearm took
this case out of the heartland of the typical bank larceny case.
Section 5K1.0 states that “this subpart seeks to aid the court
by identifying some of the factors that the Commission has not been
able to take into account fully in formulating the guidelines”. At
5
Merhan also asserts, once again, that he should not be held
responsible for the firearm use because he was acquitted of the
substantive bank larceny charges. As noted, that acquittal does
not relieve him of liability as a co-conspirator in the bank
larceny.
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§ 5K2.6, the Commission identified the use of a weapon as one of
those factors:
If a weapon or dangerous instrumentality was
used or possessed in the commission of the
offense the court may increase the sentence
above the authorized guideline range. The
extent of the increase ordinarily should
depend on the dangerousness of the weapon, the
manner in which it was used, and the extent to
which its use endangered others....6
Thus, the Guidelines acknowledge that they do not adequately take
into account the use of a firearm in all offenses, and that this is
a proper ground for departure. Therefore, the Guidelines state
that use of a firearm takes a case out of the heartland of typical
cases; and the district judge’s reference to § 5K2.6 is sufficient
to support the decision to depart. See United States v. Lee, 989
F.2d 180, 183 (5th Cir. 1993) (“The Sentencing Commission permits
courts to depart from the guidelines where weapons are used in the
commission of an offense, see U.S.S.G. § 5K2.6, because such an
aggravating circumstance has not been given adequate consideration
by the guidelines”); United States v. Register, 931 F.2d 308, 314
(5th Cir. 1991) (“This court has upheld upward adjustments for mere
possession of a firearm”) (citing United States v. Otero, 868 F.2d
6
Our court has interpreted § 5K2.6 as referring “to crimes
that may be committed with or without the use of a weapon”. United
States v. Medina-Gutierrez, 980 F.2d 980, 983 (5th Cir. 1992).
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1412, 1414 (5th Cir. 1989); United States v. Hewin, 877 F.2d 3, 5
(5th Cir. 1989); United States v. Mueller, 902 F.2d 336, 345 (5th
Cir. 1990)).
In addition to referencing § 5K2.6, the district court gave
specific reasons for the extent of the departure, including its
concern that an innocent bystander could have interrupted the
staged robbery and been injured. These reasons are adequate; we
find no abuse of discretion in the extent of the departure. See
Lee, 989 F.2d at 183 (§ 5K2.6 departure will be upheld if extent is
reasonable; district court not required to give specific or general
reasons for extent).
7.
Finally, Serrano asserts that, because he was acquitted of the
substantive bank fraud counts, the district court erroneously
included in his $464,000 restitution (Merhan’s is for $432,000) the
$32,000 taken from a bank other than Wells Fargo. In any event,
consistent with his loss calculation claim, he contends that he
should not be ordered to repay an amount greater than the $60,000
he received after the staged robbery.
As discussed, the evidence was sufficient to find that Serrano
conspired in both bank fraud and bank larceny. Concerning the
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other bank, the district court relied properly on the PSR. The
restitution amount was not clearly erroneous.
III.
In the light of the foregoing, Merhan and Serrano’s
convictions and sentences are
AFFIRMED.
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