Appeal from the United States District Court for the District of Montana; Jack D. Shanstrom, District Judge, Presiding; D.C. No. CR-89-32-04-JDS. Appeal from the United States District Court for the District of Montana David A. Ezra, District Judge, Presiding; D.C. No. CR-89-32-04-DE.
Wright, Beezer and Wiggins, Circuit Judges.
Theodore Hogan, former Executive Director of the Crow Indian Tribal Housing Authority, appeals 1) from the sentence he received under the Guidelines after pleading guilty to embezzlement from an Indian Tribal Organization (18 U.S.C. § 1163) [Appeal No. 90-30410], and 2) from a jury verdict finding him guilty of conspiracy (18 U.S.C. § 371), bank fraud (18 U.S.C. § 1014), and making false statements on a bank loan application (18 U.S.C. § 1014) [Appeal No. 90-30413]. This court has jurisdiction of Hogan's timely appeals pursuant to 28 U.S.C. § 1291. In Appeal No. 90-31410, we affirm in part, and reverse and remand in part. In Appeal No. 90-30413, we affirm.
Hogan argues that the district court erred by giving him a two-point increase for more than minimal planning pursuant to U.S.S.G. § 2F1.1(b)(2). He asserts that the embezzlement to which he pleaded guilty was a "simple form" of the crime and that there was only one victim, the Crow Tribe. The district court's determination is a factual one, which this court reviews for clear error. United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.), cert. denied, 469 U.S. 824 (1984).
Section 2F1.1(b)(2) reads: "If the offense involved (A) more than minimal planning, or (B) a scheme to defraud more than one victim, increase by 2 levels." U.S.S.G. § 2F1.1(b)(2). The Guidelines define "more than minimal planning" as "more planning than is typical for commission of the offense in a simple form . . . [or taking] affirmative steps to . . . conceal the offense." U.S.S.G. § 1B1.1, Application Note 1(f). When the crime is embezzlement, the Guidelines explain:
In an embezzlement, a single taking accomplished by a false book entry would constitute only minimal planning. On the other hand, creating purchase orders to, and invoices from, a dummy corporation for merchandise that was never delivered would constitute more than minimal planning, as would several instances of taking money, each accompanied by false entries.
Based on the above definitions, we find that the district court did not commit clear error by finding that Hogan's crimes involved more than minimal planning under § 2F1.1(b)(2)(A). Hogan's embezzlement, with regards to both the bank loan (count nine) and the check (count ten) required more planning than a simple "false book entry." Hogan worked in concert with other leaders of the Crow Tribe in deceiving the banks. Further, this was not a matter of money legitimately being handled by Hogan who, at a weak moment, converted it for his own benefit. On the contrary, every indication is that the conversion of the loan and the check involved detailed planning by Hogan over a significant period of time. Hogan's actions were not a "simple form" of embezzlement.
Hogan argues that the district court erred by giving him a four-point increase for being a leader of the offense pursuant to U.S.S.G. § 3B1.1(a). He contends that the court improperly considered uncharged conduct in deeming him a leader. This court reviews for clear error the factual finding that a defendant was a leader of the offense. United States v. Sanchez, 908 F.2d 1443, 1447 (9th Cir. 1990).
Section 3B1.1(a) reads: "If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels." U.S.S.G. § 3B1.1(a). The Guidelines explain that in "assessing whether an organization is 'otherwise extensive,' all persons involved ...