United States v. August L. Holthaus ( 2007 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 06-2843
    ___________
    United States of America,               *
    *
    Appellee,                  *
    * Appeal from the United States
    v.                                * District Court for the
    * Northern District of Iowa.
    August L. Holthaus, Jr.,                *
    *
    Appellant.                 *
    *
    ___________
    Submitted: February 13, 2007
    Filed: May 25, 2007
    ___________
    Before RILEY, MELLOY, and SHEPHERD, Circuit Judges.
    ___________
    RILEY, Circuit Judge.
    August Holthaus, Jr. (Holthaus) pled guilty to knowingly and fraudulently
    making a false declaration or statement in connection with his bankruptcy petition, in
    violation of 
    18 U.S.C. § 152
    (3). The district court1 sentenced Holthaus to 5 months’
    imprisonment followed by 5 months’ home detention during 3 years’ supervised
    release. The court also ordered mandatory restitution of $8,093.02, pursuant to the
    Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, for uncompensated
    1
    The Honorable Linda R. Reade, Chief Judge, United States District Court for
    the Northern District of Iowa.
    legal services and out-of-pocket expenses. Holthaus appeals his sentence and the
    restitution order. We affirm.
    I.     BACKGROUND
    Holthaus filed a bankruptcy petition under Chapter 7 of the United States
    Bankruptcy Code in October 2002 and failed to report various assets and liabilities.
    The bankruptcy court denied the discharge of Holthaus’s debts because Holthaus
    failed to disclose his assets truthfully. On July 27, 2005, Holthaus was indicted for
    knowingly and fraudulently making a false declaration or statement under penalty of
    perjury in his voluntary bankruptcy petition. He pled guilty on September 15, 2005.
    At sentencing, the parties agreed Holthaus concealed the following assets
    valued at $54,478.57: an inheritance ($36,023.35), gambling winnings ($1,400), a
    tractor ($5,000), a cabin ($4,000 in equity), accounts receivable ($7,855.22), and a
    shotgun ($200). Holthaus admitted he intended to defraud creditors when he failed
    to list the accounts receivable and the shotgun, but denied such intent when concealing
    the tractor, cabin, inheritance, and gambling winnings. In response, the government
    argued the circumstances surrounding the concealment evidenced Holthaus’s intent
    to inflict a loss upon his creditors of the full $54,478.57 in income and assets.
    The district court determined the intended loss to be $54,478.57 based on the
    total value of the assets and income Holthaus fraudulently concealed. The district
    court calculated a base offense level of 6 under U.S.S.G. § 2B1.1(a). The court then
    added a six-level increase pursuant to § 2B1.1(b)(1)(D) for intending a loss of more
    than $30,000, and a two-level increase under § 2B1.1(b)(7)(B) for misrepresentation
    or fraud during a bankruptcy proceeding. The court also departed downward two
    levels for acceptance of responsibility. Holthaus’s adjusted offense level of 12,
    together with a criminal history category of I, resulted in an advisory Sentencing
    Guidelines range of 10 to 16 months.
    -2-
    On appeal, Holthaus challenges the district court’s finding that Holthaus
    intended to defraud his creditors of more than $30,000, which resulted in a six-level
    increase under § 2B1.1(b)(1)(D). Holthaus argues he did not intend to defraud his
    creditors of more than $8,055.22, which would have resulted in an advisory
    Sentencing Guidelines range of only zero to 6 months. Holthaus also appeals the
    district court’s restitution order.2
    II.   DISCUSSION
    A.    Intended Loss for Sentencing Purposes
    We review de novo the district court’s interpretation and application of the
    advisory Sentencing Guidelines. United States v. Rouillard, 
    474 F.3d 551
    , 555 (8th
    Cir. 2007). We review for clear error the district court’s factual determinations of
    loss. United States v. Levine, 
    477 F.3d 596
    , 603 (8th Cir. 2007).
    “Loss” means the greater of either “actual loss” or “intended loss.” U.S.S.G.
    § 2B1.1, cmt. n.2(A). Because the bankruptcy court refused to discharge Holthaus’s
    debt, no actual loss resulted from Holthaus’s fraud. See United States v. Wheeldon,
    
    313 F.3d 1070
    , 1072 (8th Cir. 2002). Thus, we look to the probable intended loss for
    purposes of Holthaus’s sentence increase under § 2B1.1(b)(1). See id. “The
    government must prove the intended loss by a preponderance of the evidence.”
    United States v. Staples, 
    410 F.3d 484
    , 490 (8th Cir. 2005). The intended loss is the
    pecuniary harm Holthaus “intended to result from [his] offense,” and it includes “harm
    that would have been impossible or unlikely to occur.” U.S.S.G. § 2B1.1 cmt.
    2
    Holthaus further raises and preserves the issue that disputed sentencing fact
    issues increasing the Sentencing Guidelines range must be determined beyond a
    reasonable doubt. This issue is decided to the contrary by precedent. See United
    States v. Garcia-Gonon, 
    433 F.3d 587
    , 593 (8th Cir. 2006) (“Under an advisory
    Guidelines regime, sentencing judges are only required to find sentence-enhancing
    facts by a preponderance of the evidence.”).
    -3-
    n.2(A)(ii). The district “court need only make a reasonable estimate of the loss . . .
    based on available information.” U.S.S.G. § 2B1.1 cmt. n.2(C).
    Holthaus argues this intended loss for sentencing purposes was $8,055.22 – the
    combined value of the accounts receivable and the shotgun, excluding the inheritance,
    gambling winnings, cabin, and tractor.
    In discussing our decisions in Wheeldon and United States v. Dolan, 
    120 F.3d 856
     (8th Cir. 1997), the parties each mischaracterize precedent when explaining the
    calculation of intended loss. In Dolan, the defendant committed bankruptcy fraud,
    concealing $1,985,000 in assets. Dolan, 
    120 F.3d at 862
    . The bankruptcy petition set
    forth $1,376,558.91 in total liabilities, $446,500 in property, and $590,000 in arranged
    settlements with creditors. 
    Id. at 870-71
    . This left a discharge amount of
    approximately $340,000. By virtue of concealing nearly $2 million, the debtor
    appeared eligible for the requested discharge of approximately $340,000 in reported
    debt, thereby intending a loss to creditors of $340,000.
    Indeed, Dolan also represented the rare situation in which the value of the
    concealed assets alone equaled more than the amount to be discharged. 
    Id.
     Under
    those circumstances, we concluded intended loss should be calculated “by using either
    the value of the assets concealed or the value of the debtor’s liabilities, whichever is
    less.” 
    Id. at 870
    . This conclusion follows the general rule that intended loss usually
    does not exceed the value of the debts sought to be discharged or otherwise avoided.
    See id.; see also United States v. Edgar, 
    971 F.2d 89
    , 95 (8th Cir. 1992) (capping
    intended loss at the amount of debt when “the value of the concealed property exceeds
    the amount of debt owed to the creditors”). Because the defendant’s fraudulent
    concealment in Dolan potentially could have effectuated a discharge of the debtor’s
    reported remaining liabilities of $340,000, the total discharge amount established
    “intended loss.” See Dolan, 
    120 F.3d at 870-71
    .
    -4-
    Standing in contrast to the facts of Dolan, in Wheeldon, the debtor filed for
    bankruptcy, reporting no assets while concealing approximately $64,600 in assets.
    Wheeldon, 
    313 F.3d at 1072
    . The concealed assets were worth much less than the
    debtor’s discharge amount of approximately $139,500. 
    Id.
     Because the total value
    of the debtor’s concealed assets plus disclosed assets was less than the total liabilities
    the debtor petitioned to discharge or avoid, the debtor’s concealment did not affect his
    actual insolvency status. The debtor’s illegal concealment of assets could not have
    effectuated discharge of his entire debt, so the intended loss did not encompass the
    entire discharge amount. See 
    id. at 1073
    . Instead, the debtor’s intended loss extended
    only to the value of the assets he hid from his creditors. 
    Id.
     (limiting intended loss “to
    the assets [creditors] would have known about if the petition had been truthful”).3
    When determining intended loss, we look to the amount of loss a defendant
    actually intended to cause his creditors. See United States v. Wells, 
    127 F.3d 739
    , 747
    (8th Cir. 1997) (acknowledging actual intent controls, and when “a court determines
    either that the defendant intended to succeed to the full extent of the fraud, or that
    there was no evidence that the defendant intended to cause less than the greatest
    possible loss . . . in those circumstances, the intended loss can properly be measured
    by the possible loss”); see also Staples, 
    410 F.3d at 490
    . There is no blanket rule
    defining intended loss as the lesser of the value of assets concealed or the value of the
    debtor’s liabilities. Indeed, some factual scenarios may require an intended loss
    calculation based on the greater of the value of the assets concealed or debt sought to
    be discharged. See United States v. Shevi, 
    345 F.3d 675
    , 679 (8th Cir. 2003) (noting
    “if the debtor’s concealed assets plus his disclosed assets totaled more than his debts,
    3
    The intended loss in Wheeldon also happened to be the lesser of the value of
    assets concealed or total discharge amount. Despite this parallel, we merely
    acknowledged the calculation used in Dolan and qualified the calculation by
    explaining the factual context of Dolan. See Wheeldon, 
    313 F.3d at 1072-73
    , 1073
    n.3. We did not apply the statement made in Dolan as a categorical rule, although we
    believed “the rule stated is sound.” 
    Id.
     at 1073 n.3
    -5-
    then asset concealment was essential to establishing insolvency, and the debtor was
    not entitled to bankruptcy protection at all”). Even if the value of the assets concealed
    is less than the discharge amount, when a defendant’s fraudulent concealment creates
    an illusory eligibility for bankruptcy, intended loss extends to the entire discharge
    amount because he intends his crime to effectuate the improper discharge of all the
    reported debt.
    1.     Concealed Assets
    Holthaus argues the district court erred by including his $36,023.35 inheritance
    in the loss calculation4 because the government failed to prove Holthaus retained any
    of the income when he filed for bankruptcy or spent it in contemplation of bankruptcy.
    Holthaus claims he spent this income before filing for bankruptcy and therefore could
    not have intended to deprive his creditors of income he knew was unavailable to them.
    The district court properly rejected this argument as self-serving. See Dolan,
    
    120 F.3d at 871
    . The record indicates Holthaus forestalled the bankruptcy trustee in
    locating his income, and it remained unclear throughout the sentencing hearing where
    the income went. Holthaus asserts he made certain purchases after receiving the
    inheritance income but before filing for bankruptcy and argues these purchases
    constitute circumstantial evidence he spent the income. The trustee testified, after
    spending an extra fifty hours of investigation, Holthaus’s dishonesty coupled with his
    lack of cooperation left the trustee unable to agree with Holthaus’s assertion the
    money had all been spent before Holthaus filed for bankruptcy. The district court
    credited the trustee’s testimony, stating the trustee may have been able to recoup some
    of the creditors’ losses had Holthaus been forthcoming about the location of his
    inheritance, explaining “this is the very reason why the bankruptcy statutes require
    4
    Although Holthaus also argues the district court improperly included in the
    loss calculation his gambling winnings, tractor, and interest in the cabin, the
    classification of Holthaus’s inheritance is the critical issue in this case, as that amount
    alone was greater than $30,000.
    -6-
    persons to not only disclose their assets, but also recent income.” The court found that
    in concealing his inheritance income, Holthaus “hindered the trustee and bought
    himself time to spend the inheritance.” The district court’s credibility determinations
    are virtually unreviewable by this court. United States v. Agboola, 
    417 F.3d 860
    , 869
    (8th Cir. 2005).
    Holthaus argues the government failed to meet its burden because the trustee
    could not find his income. Under the circumstances here, the government need not
    prove a negative. See Rogers v. United States, 
    367 F.2d 998
    , 1000 (8th Cir. 1966).
    We decline Holthaus’s invitation to reward defendants who are particularly skilled at
    hiding their income. See United States v. Piggie, 
    303 F.3d 923
    , 927 (8th Cir. 2002)
    (rejecting the defendant’s “invitation to calculate intended losses based upon [the
    defendant’s] succeeding with his fraud and deception”). To do so would be to
    encourage the very conduct outlawed by the statute of conviction here.
    The value of assets concealed serves as relevant evidence in determining
    intended loss. See Wheeldon, 
    313 F.3d at 1073
     (instructing the district court to
    determine intended loss based on the value of assets concealed). Holthaus does not
    dispute the dollar amounts associated with the concealed inheritance, so the value of
    concealed income constitutes the upper limit “a reasonable person in [Holthaus’s]
    position could have intended” to keep from his creditors at the time of the fraud.
    Staples, 
    410 F.3d at 490
    ; see also Wheeldon, 
    313 F.3d at 1073
    , 1073 n.2 (holding
    where the defendant knows as well as anyone the value of the assets he concealed, the
    intended loss calculation may properly be based upon the value of the assets
    concealed). Holthaus failed to offer at sentencing more than his bare assertions he
    intended no loss. Thus, we conclude the district court did not clearly err in
    determining intended loss. See U.S.S.G. § 2B1.1 cmt. n.2(C) (requiring the district
    court to “only make a reasonable estimate of the loss”).
    -7-
    Because we conclude the district court properly included Holthaus’s $36,023.35
    inheritance in the loss calculation, which alone triggers the six-level increase under
    § 2B1.1(b)(1)(D), we find it unnecessary to address Holthaus’s arguments against the
    inclusion of the other assets.
    Holthaus also argues a loss calculation based on the face value of his concealed
    inheritance results in an unfair presumption that improperly shifts the burden of proof
    to Holthaus. We disagree. The district court did not mechanically equate the value
    of concealed income with intended loss. Rather, as discussed above, the district court
    determined Holthaus’s subjective intent based on the available evidence. Holthaus
    pled guilty to knowingly and fraudulently concealing assets and liabilities in
    connection with his voluntary bankruptcy petition. 
    18 U.S.C. § 152
    (c). Holthaus
    admitted a knowing intent to deceive when filing for bankruptcy, presumably
    expecting asset concealment to benefit him by either (1) making discharge of his debt
    more likely (intending a loss of his entire discharge amount), or (2) allowing him to
    retain the assets while keeping them hidden from creditors (intending a loss of the
    value of assets concealed). See, e.g., Piggie, 
    303 F.3d at 927
     (explaining intended loss
    properly encompassed losses intended to be “the natural and probable consequences
    of the defendant’s actions”). While the full value of the assets concealed should not
    automatically determine intended loss, sometimes the value of the assets concealed
    remains the best evidence of intended loss. Thus, Holthaus’s mere assertion he did
    not fraudulently conceal assets fails because the government need not prove an
    element already established by Holthaus’s adjudication of guilt. See Staples, 
    410 F.3d at 490
     (“Absent other evidence of the defendant’s intent, the size of the maximum loss
    that a fraud could have caused is circumstantial evidence of the intended loss which
    satisfies the preponderance of the evidence standard.”); see also United States v.
    Geevers, 
    226 F.3d 186
    , 193 (3d Cir. 2000) (concluding a district court may “draw
    inferences from the face value . . . in arriving at the factual conclusion that the
    defendant intended” that amount of harm, which satisfies the government’s prima
    facie case and shifts the burden of production to the defendant “to demonstrate that
    -8-
    he actually intended something less”). Here, Holthaus offered no persuasive evidence
    he intended to defraud his creditors of a lesser amount than the total value of the
    inheritance income he concealed.5
    The government carried its burden of proving Holthaus intended a loss of more
    than $30,000. The district court did not clearly err in determining the full value of the
    concealed assets constituted intended loss.
    B.     Restitution
    Holthaus claims the district court erred in concluding the bankruptcy trustee
    was a victim under the MVRA, 18 U.S.C. § 3663A, and in ordering restitution for the
    trustee’s uncompensated work as a result of Holthaus’s offense. Holthaus asserts his
    crime only indirectly affected the trustee because the trustee is not one of Holthaus’s
    creditors, and therefore the trustee fails to meet the “directly and proximately harmed”
    statutory requirement. We disagree.
    Determining who is a “victim” under the MVRA is a question of law we review
    de novo. United States v. Senty-Haugen, 
    449 F.3d 862
    , 865 (8th Cir. 2006). The
    MVRA defines a “victim” as “a person directly and proximately harmed as a result
    of the commission of an offense.” 18 U.S.C. § 3663A(a)(2). Holthaus first argues the
    trustee is not a “person” within the meaning of the statute. The plain language of
    § 3663A(a)(2) does not bar a bankruptcy trustee from potentially being “directly and
    proximately harmed as a result of the commission of an offense.” 18 U.S.C.
    § 3663A(a)(2). See also United States v. Mickle, 
    464 F.3d 804
    , 810 (8th Cir. 2006)
    (explaining “the MVRA authorizes an order of restitution to any person ‘directly and
    5
    Although the record does not clearly indicate whether Holthaus intended his
    fraudulent concealment to effect discharge of his entire debt, thereby intending an
    even greater loss, we need not resolve that issue. The government has not challenged
    Holthaus’s sentence as insufficient, and the district court did not clearly err in finding
    Holthaus intended to deprive his creditors of at least $30,000.
    -9-
    proximately harmed’ as a result of the conspiracy, even if the offense of conviction
    did not require proof [the defendant] defraud[ed] those particular victims”), cert.
    denied, 
    127 S. Ct. 1308
     (2007). The Seventh Circuit has held bankruptcy trustees
    qualify as victims under the statute if their compensation is negatively impacted by
    a debtor’s misrepresentation, concluding the defendant directly and proximately
    harmed the bankruptcy trustee by misstating assets, which “reduced [the trustee’s]
    compensation and increased [the trustee’s] costs.” United States v. Lowell, 
    256 F.3d 463
    , 465-66 (7th Cir. 2001). We agree and adopt the reasoning and holding in
    Lowell.
    The district court correctly determined Holthaus’s violation of 
    18 U.S.C. § 152
    (3) directly and proximately harmed the bankruptcy trustee because the trustee
    worked more than fifty uncompensated hours as a result of Holthaus’s fraud.6 Thus,
    restitution was appropriate.
    III.  CONCLUSION
    For the foregoing reasons, we affirm Holthaus’s sentence and the district court’s
    order of restitution.
    ______________________________
    6
    To the extent Holthaus argues Hughey v. United States, 
    495 U.S. 411
    , 420
    (1990) (concluding restitution should be awarded only for harm resulting from a
    charged offense) requires a victim be specifically named in the statute of conviction,
    his argument mischaracterizes the holding of Hughey. Additionally, the MVRA
    superseded Hughey’s holding. See United States v. Scat, Inc., 40 F. App’x 310, 311
    (8th Cir. 2002) (per curiam) (unpublished) (noting the MVRA superseded Hughey and
    “authorizes restitution for every victim harmed in the course of the defendant’s
    scheme, conspiracy, or pattern of criminal activity, not just the offense of
    conviction”).
    -10-