U.S. v. Hahn

• Decision Date: 18 December 2008
• Docket Number: No. 07-5117.,07-5117.
• Citation: 551 F.3d 977
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vinson L. HAHN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

551 F.3d 977

UNITED STATES of America, Plaintiff-Appellee, v. Vinson L. HAHN, Defendant-Appellant.

No. 07-5117.

United States Court of Appeals, Tenth Circuit.

December 18, 2008.

James Fatigante of Tulsa, OK, for Defendant-Appellant.

Charles M. McLoughlin, Assistant United States Attorney (David E. O'Meilia, United States Attorney, with him on the brief), Tulsa, OK, for Plaintiff-Appellee.

Before HARTZ, SEYMOUR and O'BRIEN, Circuit Judges.

SEYMOUR, Circuit Judge.

Vinson L. Hahn pled guilty to violating 18 U.S.C. § 656, the misapplication of financial institution funds, and was sentenced to eighteen months incarceration and a five-year term of supervised release. He appeals, challenging the calculation of loss, restitution order, consecutive sentence, and application of special sex offender conditions. We affirm.

I.

Mr. Hahn began his employment with the Bank of Oklahoma (BOK) in October 1999 as a Transfund ATM technician. In February 2002, following a discovery of shortages in the automated teller machines (ATMs), BOK began an investigation. ATMs are stocked with "straps" of cash, with each strap containing 100 bills of varying denominations. The machines were reporting straps containing only seventy-nine or eighty bills. Investigators learned that the problem appeared to result from someone taking bills out of the straps used to refill the ATM and then putting a "short" strap into the machine.

Authorities subsequently initiated a formal investigation focusing on Mr. Hahn after discovering a strap on his route with only forty-eight bills in it. They found additional shortages after a change in his regular route. Then, on January 27, 2004, Mr. Hahn was detected by a surveillance camera installed by investigators. The method Mr. Hahn used to take the money — removing part of a strap of bills taken from the replenishment stash — was consistent with the previous thefts. He was found to have $640 on his person and he admitted to having taken money on several prior occasions. He was terminated from his employment at BOK.

Several months later, Mr. Hahn was arrested for an unrelated state offense, two counts of lewd and indecent proposal to a child. He was found guilty on April 6, 2006 and sentenced to consecutive seven and twelve year sentences.

The one-count information in the present case charged Mr. Hahn with the misapplication of financial institution funds between November 22, 1999 and January 27, 2004. He pled guilty and was sentenced to eighteen months incarceration followed by a five-year term of supervised release, to run consecutive to the nineteen-year state sentence. The court also ordered restitution in the amount of $53,392.75. The court imposed the standard conditions of supervised release as well as several additional ones including special sex offender conditions.

II.

Mr. Hahn argues that the district court incorrectly calculated the amount of loss, and that his sentence under the guidelines is therefore in error. The district court found by a preponderance of the evidence that the loss to BOK was $55,782.64, which increased Mr. Hahn's offense level under the guidelines by 6 levels. See U.S.S.G. § 2B1.1(b)(1).

We review the district court's calculation of loss for clear error. United States v. Leach, 417 F.3d 1099, 1105 n. 8 (10th Cir.2005). "To reverse under this standard requires that, based on the entire evidence, we have a `definite and firm conviction that a mistake has been committed.'" O'Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1221 (10th Cir.2007) (quoting Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001)). The applicable guidelines' commentary notes that the sentencing court "need only make a reasonable estimate of the loss," explaining that "[t]he sentencing judge is in a unique position to assess the evidence and estimate the loss based upon that evidence." U.S.S.G. § 2B1.1. cmt. n. 3(C).

Witnesses for the prosecution testified that Mr. Hahn told investigators he deposited the cash he took from ATMs into his bank account.¹ According to investigators, Mr. Hahn admitted to having a gambling problem, but said that he kept his gambling winnings at home. Mr. Hahn did not identify any other sources of income to explain the cash deposits. The government presented evidence showing there were between two and seven cash deposits into Mr. Hahn's account each month, and that withdrawals from ATMs located in or near casinos occurred more frequently and for larger amounts over time. The district court based its calculation of loss on the evidence showing the amount of cash deposited into Mr. Hahn's checking account during his employment with BOK. The government concedes that it does not have direct evidence of the actual amount of loss to BOK, which it believes to be much higher.²

The government presented an exhibit comparing actual losses from the ATMs to expected or "baseline" losses, with expected losses based on average loss per ATM machine prior to Mr. Hahn's employment with BOK. The total above-baseline loss to the Tulsa region from 2000 to 2004 was $203,690. The loss jumped from $18,664 in 1998 and $19,918 in 1999 to $41,039 in 2000, $50,972 in 2001, $77,155 in 2002, and $104,954 in 2003. The most damaging circumstantial evidence came from 2004, when Mr. Hahn only worked for twenty-seven days in January before being dismissed. The loss for that one month was $22,033, while the total loss for the remainder of the year was only $7,707. One witness's conclusion when asked about the figures was that "[the losses] started ramping up at the time of the first cash deposit last November [1999] and came to a screeching halt in the month of January of 2004." Rec., vol. III at 79 (testimony of Mr. Bourgeois). The government introduced several additional pieces of evidence, including Mr. Hahn's admissions to investigators regarding the amount of the thefts³ and audits of losses on Mr. Hahn's route.⁴

Defendant argues that the government failed to present evidence sufficient to support the court's finding. He points to the lack of evidence linking the cash deposits in his account to BOK's losses and to the 2000 and 2001 audits that failed to reveal problems with his route. Mr. Hahn also challenges the government's calculation of losses based on the entire Tulsa region rather than on Mr. Hahn's routes specifically.⁵

The district court relied on the "credibility of the witnesses called by the government and [ ] the strength of the pattern evidenced in [the] Government's Exhibits." Rec., vol. III at 95. The court noted the pattern and frequency of cash deposits (which were often in round numbers), Mr. Hahn's gambling habit and "financially precarious position," and his admission that he deposited the stolen cash into his checking account but kept his gambling winnings at home. Id. at 95-96. Mr. Hahn is correct to note there is no evidence directly linking the deposits made to his account to the losses recorded by the bank. There are, however, possible explanations for this apparent discrepancy, such as difficulty in detection⁶ and the likelihood that Mr. Hahn did not immediately deposit all of the money he took. Audits of Mr. Hahn's routes revealed shortages, the losses to the Tulsa region dropped off drastically following his termination, and Mr. Hahn admitted he deposited cash from the ATM thefts into his account and was unable to name any other source for the cash deposits. In short, under a clear error standard, the record contains evidence sufficient to support the sentencing court's findings. We therefore affirm the district court's calculation of loss.

III.

We review the factual findings underlying the district court's restitution order for clear error and the amount of restitution for abuse of discretion. United States v. Quarrell, 310 F.3d 664, 676 (10th Cir.2002). As discussed above, the record contains sufficient evidence to support a finding that the BOK sustained a loss of $55,782.64. Accordingly, the evidence is also sufficient to support the restitution order based on that finding of loss.⁷

IV.

Mr. Hahn contends the district court erred in sentencing him consecutively to his state sentence. We review the district court's decision for abuse of discretion. See United States v. Hurlich, 293 F.3d 1223, 1230 (10th Cir.2002).

Section 5G1.3 of the Sentencing Guidelines governs the imposition of a sentence where the defendant has an undischarged term of imprisonment. Subsection § 5G1.3(a) does not apply because the instant offense was not committed while the defendant was serving a time of imprisonment. Likewise, § 5G1.3(b) does not apply because the undischarged state sentence was not relevant conduct to the instant offense. See U.S.S.G. § 5G1.3(a)(b). We therefore look to § 5G1.3(c)'s Policy Statement, which applies to all cases involving an undischarged term of imprisonment not falling within subsections (a) or (b). See U.S.S.G. § 5G1.3(c). The Policy Statement grants the sentencing court discretion to determine whether the sentence should be concurrent, partially concurrent, or consecutive in order to "achieve a reasonable punishment for the instant offense." Id. The Application Note instructs the sentencing court to consider, inter alia, the factors laid out in 18 U.S.C. § 3553(a). U.S.S.G. § 5G1.3 cmt. n. 3(A).

The district court provided a statement of reasons, as required under our case law. Hurlich, 293 F.3d at 1230.⁸ The court was not required to make specific findings, as Mr. Hahn argues. Id. at 1230. The sentencing court did not abuse its discretion in giving Mr. Hahn a consecutive sentence.

V.

Mr. Hahn challenges the imposition of special sex offender conditions, arguing that the conditions do not meet 18 U.S.C. § 3583(d)'s requirements for conditions of supervised release. We review the district court's decision to impose special conditions of supervised release for abuse of discretion. United States v. Bartsma, 198 F.3d 1191,...