F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 21 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-5145
(N. District of Oklahoma)
NELSON BEKEDERMO, aka Nelson (D.C. No. 96-CR-58-H)
Becks, aka Nelson Bekederemo, aka
Nelson Bekedebermo,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This court
therefore honors the parties’ requests and orders the case submitted without oral
argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
In 1996, Nelson Bekedermo pleaded guilty to a single count of conspiracy
to commit bank fraud under 18 U.S.C. § 371; he was sentenced to a six-month
term of imprisonment to be followed by a three-year period of supervised release.
While Bekedermo was serving his term of supervised release, the United States
Probation Office (“USPO”) filed a petition to revoke his supervised release (the
“Petition”) on the grounds that he had violated two conditions of supervised
release. The Petition alleged that Bekedermo (1) violated a special term of his
supervised release which precluded Bekedermo from applying for any loan or
credit arrangement without first consulting with the USPO; and (2) violated a
general term of his supervised release–that he refrain from committing any further
federal, state, or local crimes–when he applied for, received, and used a credit
card which was issued in Bekedermo’s own name but based upon an application
that contained the social security number of his minor son, Nelson Bekedermo, Jr.
At the conclusion of a hearing on the Petition, the district court revoked
Bekedermo’s supervised release and sentenced him to a term of incarceration of
ten months to be followed by a twenty-four month term of supervised release.
The case is before this court on Bekedermo’s appellate brief, which asserts
that the district court’s order of revocation is not supported by sufficient
evidence, and his unopposed motion to expedite this appeal. This court exercises
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jurisdiction pursuant to 28 U.S.C. § 1291, grants Bekedermo’s motion to
expedite, and affirms the district court’s order of revocation.
This court reviews a district court decision to revoke a term of supervised
release for abuse of discretion and its subsidiary factual findings for clear error.
United States v. McAffee, 998 F.2d 835, 837 (10th Cir.1993); United States v.
Hall, 984 F.2d 387, 389 (10th Cir. 1983). In order to revoke Bekedermo’s term
of supervised release, the trial court must find by a preponderance of the evidence
that he violated a condition of his release. See 18 U.S.C. § 3583(e)(3). The trial
court, as the trier of fact, has the exclusive function of appraising credibility,
determining the weight to give testimony, drawing inferences from the facts
established, and reaching ultimate determinations of fact. United States v. Leach,
749 F.2d 592, 600 (10th Cir.1984). In reviewing the sufficiency of the evidence,
this court must view all of the evidence, both direct and circumstantial, and all
reasonable inferences to be drawn therefrom, in the light most favorable to the
government. Id.
As the first ground for revocation of Bekedermo’s supervised release, the
Petition alleged that Bekedermo feloniously used his son’s social security number
on a credit card application in violation of 42 U.S.C. § 408(a)(7)(B). Section
408(a)(7)(B) makes it a felony for any person to falsely represent, with intent to
deceive, that a social security number is theirs. At the revocation hearing,
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Bekedermo stipulated as follows: that he had submitted, under his own name, a
credit card application containing his son’s social security number, that based
upon the application he had been issued a credit card, and that he had received
and used the card. Accordingly, the sole question of fact at the revocation
hearing was whether Bekedermo included his son’s social security number on the
credit card application with the intent to deceive. In support of its contention that
Bekedermo used his son’s social security number with intent to deceive, the
USPO adduced the following evidence at the revocation hearing: (1) the social
security number of Nelson Bekedermo, Jr., XXX-XX-XXXX, bore no resemblance to
Bekedermo’s social security number, XXX-XX-XXXX; (2) the social security number
Bekedermo listed on the credit card application belonged to his namesake son,
instead of to one of Bekedermo’s other children, increasing the chances that the
incorrect number would go undetected; (3) the use of the son’s social security
number allowed Bekedermo to obtain the credit card on appreciably better terms
that if he had used his own social security number 1; and (4) the underlying
conviction for which Bekedermo was serving the term of supervised release
involved a conspiracy to defraud a credit card company.
1
A representative of the bank that issued the credit card indicated to the
USPO that the credit card issued to Bekedermo normally required a $300 deposit.
Because the results of the credit check utilizing Nelson Bekedermo, Jr.’s social
security number were favorable, however, the bank only required a $49 deposit.
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On appeal, Bekedermo recognizes that the question of intent must generally
be proved by circumstantial evidence. Nevertheless, citing to a number of direct-
appeal cases involving convictions under § 408(a)(7)(B), Bekedermo asserts that
the circumstantial evidence adduced by the government in this case is not
sufficiently weighty to prove an intent to deceive. The problem with
Bekedermo’s argument is that in each of the cases he cites, the applicable
standard of proof was beyond a reasonable doubt. In the context of a revocation
of supervised release, however, the USPO must simply prove by a preponderance
of the evidence that Bekedermo used his son’s social security number on the
credit card application with the intent to deceive. See 18 U.S.C. § 3583(e)(3).
Drawing all reasonable inferences from the circumstantial evidence in favor of
the government, Leach, 749 F.2d at 600, we conclude that the district court did
not abuse its discretion in concluding the USPO proved by a preponderance of the
evidence that Bekedermo violated a condition of his supervised release by
violating § 408(a)(7)(B). See McAffee, 998 F.2d at 837 (holding that this court
reviews a district court decision to revoke a term of supervised release for abuse
of discretion and its subsidiary factual findings for clear error). 2 The judgment of
2
Because this court concludes that the district court did not err in revoking
Bekedermo’s supervised release on the grounds that he violated the general
prohibition against committing any further crimes, we need not address the
propriety of the district court’s alternate conclusion that Bekedermo violated a
special term of supervised release. See United States v. Fries, No. 98-4416, 1999
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the United States District Court for the Northern District of Oklahoma revoking
Bekedermo’s supervised release is hereby AFFIRMED.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
WL 824678, at *3 (6th Cir. Oct. 8, 1999).
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