17 F.3d 247 (8th Cir. 1994), 93-2708, Kok v. United States

Docket Nº:93-2708.
Citation:17 F.3d 247
Party Name:Terry KOK, Appellant, v. UNITED STATES of America, Appellee.
Case Date:February 18, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 247

17 F.3d 247 (8th Cir. 1994)

Terry KOK, Appellant,

v.

UNITED STATES of America, Appellee.

No. 93-2708.

United States Court of Appeals, Eighth Circuit

February 18, 1994

Submitted Nov. 11, 1993.

Page 248

Before RICHARD S. ARNOLD, Chief Judge, BEAM, Circuit Judge, and JACKSON, [*] District Judge.

Page 249

JACKSON, District Judge.

Terry Kok appeals the 27-month sentence of imprisonment and the order of restitution imposed by the district court following his plea of guilty to violation of 18 U.S.C. Sec. 1014 (making false statements to a federally insured financial institution). Appellant argues that the district court erred (1) in using amended versions of 18 U.S.C. Sec. 1014 and the United States Sentencing Guidelines (U.S.S.G.) that were not in effect at the time of the offense; (2) by incorrectly calculating the amount of loss for purposes of U.S.S.G. Sec. 2F1.1; (3) by improperly determining that it lacked authority to grant a downward departure from the guideline range; and (4) in ordering payment of restitution. For the following reasons, we affirm in part and reverse in part and remand for resentencing.

I. BACKGROUND

From 1984 through 1989 Kok was employed as the controller for Component Manufacturing Company ("Component"). During this period, Component had a line of credit with Western Bank of Sioux Falls, South Dakota ("Western"). The line of credit was initially established at $200,000, but was eventually increased to $1,300,000.

In July 1985, Kok noticed a shortage of approximately $25,000 in Component's lumber inventory. In order to cover the shortage he altered the entries in the company's accounting system. Discrepancies continued throughout the years 1986, 1987, 1988 and 1989. Without advising any officer or director of Component, Kok continued to alter the accounts in an effort to make the profit and loss statements appear correct. In addition, Kok prepared false year-end financial statements and submitted them to Component's president. The financial statements were, in turn, forwarded to Western and were relied upon by the bank in evaluating Component's continuing line of credit. As a result of the false portrayal of the company's financial condition, Western continued to increase Component's line of credit. Further, in reliance on the false financial statements, Component paid bonuses to Kok and three other employees totalling $202,709.70. During his employment, Kok also took $300 from a petty cash fund without authorization.

Almost immediately upon discovering the falsity of the financial statements, Western reduced Component's line of credit from $1,300,000 to $750,000. Kok, pursuant to a private written agreement, repaid Component $72,334.87 representing the amount of the bonuses he received, including interest.

Kok was charged by indictment with four counts of violating 18 U.S.C. Sec. 1014 and one count of violating 18 U.S.C. Sec. 4 (misprision of a felony). He pleaded guilty to Count 4 of the indictment which charged him with making a false statement on March 14, 1989 pertaining to Component's financial condition for the years 1985 through 1988 for the purpose of influencing Western's actions with respect to Component's line of credit.

II. DISCUSSION

The version of 18 U.S.C. Sec. 1014 that was in effect on the date of the offense provided for a maximum sentence of imprisonment of two years. An amendment to the statute which became effective on November 29, 1990 increased the maximum sentence of imprisonment to 20 years. See 18 U.S.C. Sec. 1014 (1992) (original at Pub.L...

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