United States v. Jeffrey Paul Moser ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-2429
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
C District Court for the District
Jeffrey Paul Moser, * of North Dakota.
a/k/a Harry N. Moser, *
*
Appellant. *
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Submitted: November 17, 1998
Filed: February 25, 1999
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Before LOKEN, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
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MORRIS SHEPPARD ARNOLD, Circuit Judge.
Jeffrey Paul Moser opened a bank checking account using the name and
birthdate of his brother Harry, a social security number that was later determined to
belong to a deceased individual, and a North Dakota identity card that Mr. Moser had
acquired in his brother’s name that listed the latter's birthdate but contained
Mr. Moser's own height, approximate weight, and hair color. Mr. Moser
subsequently deposited a stolen check for $5,000 that had been made payable to
“Harry Moser.” Mr. Moser wrote twelve checks on the account with “starter” checks
and, later, preprinted checks with the name of “Harry Moser.” Ten of those checks
were honored by the bank but two were refused. The bank suffered a total loss of
almost $4,000; the two merchants to whom Mr. Moser's checks were returned lost
approximately $670.
Mr. Moser pleaded guilty to a single count of bank fraud, see 18 U.S.C. § 1344,
and the district court1 sentenced him to 20 months of imprisonment and a three-year
term of supervised release. Mr. Moser appeals his sentence, disputing the application
of a two-level enhancement for "more than minimal planning" pursuant to U.S.S.G.
§ 2F1.1(b)(2)(A). We affirm.
I.
Before his sentencing hearing, Mr. Moser submitted a memorandum to the
district court, challenging the conclusion of the presentence report (PSR) that his
crime involved "more than minimal planning" and was thus subject to a two-level
enhancement under U.S.S.G. § 2F1.1(b)(2)(A). In the memorandum, Mr. Moser
asserted generally that he had taken no significant affirmative steps to plan the crime
or to conceal the offense, that there was no repetition or series of crimes, and that
there was no elaborate scheme to commit the fraud; he did not contest any of the
allegations of fact on which the PSR relied in suggesting that the enhancement was
warranted.
Mr. Moser maintains on appeal, however, that the district court erred when it
used the facts as represented in the PSR as the basis for imposing a two-level
enhancement, because, he says, the effect of his memorandum was to challenge the
allegations contained in the PSR. He contends, therefore, that the government was
1
The Honorable Rodney S. Webb, Chief United States District Judge for the
District of North Dakota.
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required to produce evidence to support those allegations. In addition, Mr. Moser
asserts that his counsel challenged the allegations of fact upon which the PSR relied
when his counsel stated at the sentencing hearing that the government's brief
supporting the PSR contained "a lot of facts" that were "highly speculative."
Mr. Moser argues that once he had made these challenges, the court could no longer
rely on the PSR as the basis for imposing the enhancement.
Fed. R. Crim. P. 32(c)(1) requires a sentencing court to rule on any unresolved
objections to a PSR. We have held on numerous occasions, however, that unless a
defendant objects to a specific factual allegation contained in the PSR, the court may
accept that fact as true for sentencing purposes. See, e.g., United States v. Coleman,
132 F.3d 440, 441 (8th Cir. 1998) (per curiam), cert. denied, 118 S. Ct. 1821, 119
S. Ct. 116 (1998); United States v. McFarland, 116 F.3d 316, 318 (8th Cir. 1997),
cert. denied, 118 S. Ct. 394 (1997); and United States v. LaRoche, 83 F.3d 958, 959
(8th Cir. 1996) (per curiam). Because Mr. Moser objected not to the facts themselves
but to the PSR’s recommendation based on those facts, we conclude that the district
court did not err in relying on the PSR’s allegations of fact in sentencing Mr. Moser.
See, e.g., United States v. Goodwin, 72 F.3d 88, 90 (8th Cir. 1995), and United States
v. Flores, 9 F.3d 54, 56 (8th Cir. 1993). His vague complaint about a "lot of facts"
in the government's brief is insufficient to entitle him to a hearing because it lacks
specificity and because it is not directed at the PSR in any event.
II.
Mr. Moser further asserts that the district court erred in assessing the two-level
enhancement pursuant to U.S.S.G. § 2F1.1(b)(2)(A) for "more than minimal
planning," even if the facts were as the PSR indicated. Application note 1(f) to
U.S.S.G. § 1B1.1 defines "more than minimal planning” as present if the crime
involved “more planning than is typical for commission of the offense in a simple
form," if the defendant took “significant affirmative steps” to conceal the offense, or
if the case involved repeated acts over time. Mr. Moser contends that his conduct
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amounted to bank fraud in its simplest form and thus did not warrant the
enhancement. We review a district court's finding of more than minimal planning for
clear error. See, e.g., United States v. Sheahan, 31 F.3d 595, 603 (8th Cir. 1994).
We have held that significant affirmative steps were taken to conceal an
offense when a defendant made efforts to hide his identity during a conspiracy to
transport a stolen aircraft. See United States v. Culver, 929 F.2d 389, 393 (8th Cir.
1991). Since it cannot be mere coincidence that the stolen check in this case was
payable to “Harry Moser” and that Mr. Moser had acquired a North Dakota identity
card in this name, it follows that Mr. Moser either caused the check to be forged or
obtained an identity card to match the name on the check, or both; and in any case,
he used the false identity card in opening the account. These steps to conceal his
offense were sufficient in themselves to establish more than minimal planning.
More important is the fact that Mr. Moser wrote twelve checks on the account
using the name “Harry Moser.” These "repeated acts over a period of time"
themselves signify more than minimal planning "unless it is clear that each instance
was purely opportune," see U.S.S.G. §1B1.1, application note 1(f). In United States
v. Sykes, 4 F.3d 697, 699-700 (8th Cir. 1993) (per curiam), we held that a district
court did not err when it found more than minimal planning where a defendant
charged with possessing four checks stolen from a postal van had cashed two of the
checks and had attempted to cash the other two. Similarly, in United States v.
Callaway, 943 F.2d 29, 30-31 (8th Cir. 1991), we affirmed a district court finding of
more than minimal planning in a case of social security fraud where a defendant
continued to accept and cash disability benefits checks on behalf of her infant
granddaughter for a year and a half after the child had been removed from the
defendant’s home and the defendant signed a statement during that period that there
had been no changes in the number of people in the household. Mr. Moser's attempt
to withdraw the money in the account through twelve separate transactions thus
indicates more than minimal planning.
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III.
In sum, we find that the district court did not clearly err in assessing a two-level
enhancement for more than minimal planning against Mr. Moser, and we therefore
affirm the sentence that the court imposed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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