United States v. Denver H. Linville , 228 F.3d 1330 ( 2000 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 99-12243 SEPTEMBER 29, 2000
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 99-00003-1-CR-MMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENVER H. LINVILLE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(September 29, 2000)
Before EDMONDSON, COX and HULL, Circuit Judges.
PER CURIAM:
Denver H. Linville, who stands convicted of one count of conspiracy to commit
bank fraud, in violation of 18 U.S.C. § 1371, and four counts of bank fraud, in
violation of 18 U.S.C. § 1344, appeals his convictions and sentences. His appeal
presents the issue of whether a bank is the only legally possible victim of bank fraud,
such that U.S.S.G. § 3B1.3’s two-level offense-level increase for abuse of a position
of trust does not apply unless a bank conferred the position of trust.1 Cf. United States
v. Mills, 138 F.3d 928, 941 (11th Cir.) (reading United States v. Garrison, 133 F.3d
831, 848 (11th Cir. 1998), to hold that as a matter of law only the United States may
be a victim of Medicare fraud), modified in other part on rh’g, 152 F.3d 1324 (1998).
We hold that bank fraud may have more than one victim for U.S.S.G. § 3B1.3
purposes, and that victim status turns on the facts of the case.2 In reaching this
conclusion, we take the district court’s facts as true unless they are clearly erroneous,
and we review the district court’s resolution of legal questions de novo. See United
States v. Terry, 60 F.3d 1541, 1545 (11th Cir. 1995).
According to the trial evidence and the presentence investigation report,
1
Linville also argues that the evidence was insufficient to support his convictions.
Having reviewed the record, we conclude that there was sufficient evidence to support Linville’s
convictions.
2
The Government concedes error. We are not required to accept such a concession
when the law and record do not justify it. See United States v. Flannory, 145 F.3d 1264, 1268
n.9 (11th Cir. 1998).
2
Linville engaged in a scheme to use the signature authority conferred on him by his
employer, Wade Raulerson, Inc., a car dealership, to forge checks that were cashed
and converted to personal use. Linville, who also had access to Raulerson’s books,
altered accounting records to conceal his fraud. The district court found that
Raulerson conferred trust on Linville in giving him access to its books and signature
authority on its account. The court also found that Raulerson was a victim of the
offense because it footed the bill in the end, and the court indeed awarded Raulerson,
and not the defrauded bank, about $60,000 in restitution. An abuse-of-trust
enhancement is appropriate whenever the “defendant [was] in a position of trust with
respect to the victim of the crime” and abuses that position “in a manner that
significantly faciliate[s]” the offense. United States v. Garrison, 133 F.3d 831, 837
(11th Cir. 1998) (emphasis omitted) (quoting United States v. Ragland, 72 F.3d 500,
502 (6th Cir. 1996) and U.S.S.G. § 3B1.3). A paradigmatic case is one in which “the
defendant steals from his employer, using his position in the company to facilitate the
offense.” Id. at 837-38 (quoting United States v. Koehn, 74 F.3d 199, 201 (10th Cir.
1996) in turn quoting United States v. Brunson, 54 F.3d 673, 677 (10th Cir. 1995)).
That is more or less what happened here, and the district court’s findings thus suffice
to require the two-level increase.
Linville maintains nonetheless that only a federally insured bank can be the
3
victim in a bank-fraud case. He cites United States v. Garrison for this proposition
because Garrison held that only the federal government can be a victim of Medicare
fraud. See United States v. Mills, 138 F.3d 928, 941 (11th Cir. 1998), modified in part
on reh’g, 152 F.3d 1324 (“Garrison apparently requires us to hold that the United
States is, as a matter of law, the only possible victim of a Medicare-fraud crime and
that therefore this private position of trust is irrelevant.” (emphasis in original) (citing
Garrison, 133 F.3d at 848)). Garrison offered no explanation of its implicit holding
that the United States is the only possible victim of Medicare fraud, but the likely
reason is that the government is the only entity that pays directly out of pocket for the
losses. See Mills, 138 F.3d at 930 (describing Medicare disbursement process). Bank
fraud is distinguishable. A bank is a possible victim, of course, but so are other
persons, because the fraudulent scheme need only be “to obtain money, funds, or
credits under the custody or control of a federally insured financial institution.”
United States v. Falcone, 934 F.2d 1528, 1539 (11th Cir. 1991), vacated, 939 F.2d
1455, reinstated, 960 F.2d 988 (1992) (emphasis added); see also United States v.
Key, 76 F.3d 350, 353 n.3 (11th Cir. 1996). Money under the custody or control of
a bank is not necessarily money whose loss the bank is responsible for, as this case
amply illustrates. The bank fraud statute, then, contemplates a larger class of victims
than the Medicare fraud statute. It follows that more than one person could,
4
depending on the case’s facts, be the victim who reposes trust in the defendant.
Because the district court properly increased Linville’s offense level under
U.S.S.G. § 3B1.3, we affirm his sentences.3
AFFIRMED.
3
Linville’s base offense level could not be enhanced under § 3B1.3 based upon the
use of a special skill because his sentence was enhanced two-levels for his aggravating role in
the offense pursuant to § 3B1.1.
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