United States v. Merhan

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________

No. 98-20442
____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTOPHER MERHAN,

Defendant-Appellant.

____________________

No. 98-20453
____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DHONOVAN SERRANO,

Defendant-Appellant.
_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
(97-CR-191-11)
_________________________________________________________________

August 24, 1999

Before SMITH, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:1

1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
 Appellants having been convicted, inter alia, for conspiracy

to commit both bank fraud and bank larceny, primarily at issue are

the convictions’ evidentiary sufficiency and Sentencing Guidelines’

increases. We AFFIRM.

I.

In May 1996, a predecessor to Wells Fargo Bank hired

Christopher Merhan as a teller at its branch in Houston, Texas.

Typically, Merhan worked in the mornings and, with supervisor

Kenneth Chandler, was responsible for opening the branch.

For security reasons, the three-number combination to the main

vault door was divided among two people. To open the vault each

morning, Merhan was given the first two numbers; Chandler, the

last. Unknown to his superiors, Chandler, because sometimes late

to work, gave Merhan that last number, so that he, alone, could

open the vault.

At trial, the Government claimed that Merhan became involved

in a bank fraud scheme in early 1997. The leader was Tai Duc Lai,

known as “Calvin”. Merhan and co-defendant Dhonovan Serrano were

acquainted with Calvin.

Calvin testified that he was able to make unauthorized

withdrawals from bank accounts as a result of information Merhan

gave him. Sometimes using Serrano as a conduit, Merhan would

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supply Calvin with account information, including account numbers,

balances, and the names and addresses of the account holders.

Calvin then recruited “runners”, who would visit bank branches and,

using false Texas drivers’ licenses provided by Calvin, withdraw

money from the accounts. In return, the runner and Merhan received

payment out of the fraudulently withdrawn funds.

The Government presented evidence that, the day after Merhan

handled a deposit for the account of Quaker Loh on 13 March 1997,

an unauthorized withdrawal of $2400 was made from it. Another

unauthorized withdrawal, in the amount of $2500, was made a few

days later; Merhan was the teller for this withdrawal.

Further, Frank Bokeloh’s account suffered unauthorized

withdrawals totaling $19,000 during the first two days of April

1997. The bank’s computer records showed that Merhan had examined

Bokeloh’s account information for approximately six minutes on 21

March 1997, although no teller transaction involving the account

occurred that day.

Merhan and Serrano were also charged with being involved in a

bank larceny, for which Calvin arranged a staged robbery at

Merhan’s branch. Merhan told police that, after arriving at work

at 7:00 a.m. on 16 May 1997, two individuals approached his vehicle

and forced him at gunpoint to enter the bank and de-activate the

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alarm; that the robbers instructed him not to enter the “duress

code”, a secret number for a robbery in progress alert, which the

robbers knew was 1790; that, after telling the robbers that he did

not know both sets of numbers needed to open the main vault, they

told him they knew he had the complete combination and forced him

to open it; that the robbers then bound him and took approximately

$392,000 from the vault; and that he was able to free himself and

call the police.

Those involved in the “robbery” testified, however, that it

was staged using inside information from Merhan. Calvin testified

that Merhan provided him with information regarding the bank’s

operating procedures, the location of alarms and cameras, the alarm

codes, and the cash shipment schedule, and also gave him a

schematic drawing of the inside of the branch. Calvin had then

recruited several accomplices.

Calvin also testified that, shortly before the staged robbery,

he alerted Serrano, who then contacted Merhan. Telephone records

confirmed that, during the period before the staged robbery, Merhan

made several calls to Calvin and Serrano.

Tuyen Vi Chau, known as “Richard”, one of the “robbers” who

approached Merhan while he was in his vehicle, testified that he

understood that the teller was a participant in the “robbery”; that

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it was staged; and that, although he did not know the insider’s

name, Calvin had told him that the insider was a Filipino who drove

a white Civic hatchback. Both characteristics fit Merhan.

Following the staged robbery, the accomplices divided the

stolen money. Later that day, Calvin met Serrano and handed him a

shoe box with $60,000 in cash for him to deliver to Merhan as his

share of the proceeds. Following the larceny, Serrano spent large

amounts of cash, including purchasing two airline tickets to Hong

Kong costing approximately $9,000.

A few months after the “robbery”, Merhan and Serrano, along

with numerous others, were charged with conspiracy to commit bank

fraud and bank larceny (count I), bank fraud (counts II and III),

entering with intent to commit bank larceny (count IV), bank

larceny (count V), and receiving stolen money (count VI).

Following a jury trial, Merhan and Serrano were convicted for

conspiracy (count I), Merhan for bank fraud (count II), and Serrano

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for receipt of stolen money (count VI); each was acquitted on the

other counts. Merhan’s sentence included 57 months in prison and

$432,000 in restitution; Serrano’s, 46 months in prison and

$464,000 in restitution.

II.

A.

Serrano first contests the denial of his motion to suppress

evidence seized during a search of his apartment and automobile,

claiming that his written consent was not voluntary. As he was

leaving his apartment in August 1997, he was arrested by a Houston

police officer. FBI Agents soon arrived and obtained written

consent for the search.

To be valid, consent must be both free and voluntary. E.g.,

United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993). “The

government has the burden of proving, by a preponderance of the

evidence, that the consent was voluntary.” Id. This is a question

of fact to be “determined from the totality of the circumstances

surrounding the search”. United States v. Morales, 171 F.3d 978,

982 (5th Cir. 1999) (citing Schneckloth v. Bustamonte, 412 U.S.

218, 227 (1973)).

For this, six factors must be considered: “(1) the

voluntariness of the defendant’s custodial status; (2) the presence

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of coercive police procedures; (3) the extent and level of the

defendant’s cooperation with the police; (4) the defendant’s

awareness of his right to refuse to consent; (5) the defendant’s

education and intelligence; and (6) the defendant’s belief that no

incriminating evidence will be found”. Id. We review a post-

hearing denial of a suppression motion under a “particularly

strong” clearly erroneous standard, because the judge was able to

observe the witnesses. Kelley, 981 F.2d at 1470 (quoting United

States v. Sutton, 850 F.2d 1083, 1086 (5th Cir. 1988)).

Of course, that Serrano was in custody when he gave his

consent does not ipso facto invalidate it. United States v.

Watson, 423 U.S. 411, 424 (1976). At the suppression hearing,

Serrano claimed that his consent was not voluntary because an FBI

Agent told him that he would be more likely to make bond if he

cooperated; the Agent denied making the statement. For this

credibility call, the district court’s ruling was not clearly

erroneous.

B.

Appellants challenge the evidentiary sufficiency for their

convictions. For properly preserved sufficiency challenges, we

will affirm if, when viewing the evidence in the light most

favorable to the verdict and accepting the credibility choices of

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the jury, a rational jury could have found that the Government

proved, beyond a reasonable doubt, the essential elements of the

charged crime. E.g., United States v. Guerrero, 169 F.3d 933, 938

(5th Cir. 1999) (citing United States v. Pankhurst, 118 F.3d 345,

351 (5th Cir.), cert. denied, 118 S. Ct. 630 (1997)). Serrano and

Merhan preserved this standard of review by moving for judgment of

acquittal at the close of the evidence. FED. R. CRIM. P. 29(a);

Guerrero, 169 F.3d at 938; Pankhurst, 118 F.3d at 352.

1.

Merhan first asserts that the evidence is insufficient to

support his convictions for conspiracy to commit bank fraud (one of

the two charged objects of the conspiracy; a similar challenge to

the other object is discussed infra) and for bank fraud.

a.

To establish a conspiracy under 18 U.S.C. § 371, the

Government “must prove beyond a reasonable doubt (1) that two or

more people agreed to pursue an unlawful objective; (2) that the

defendant voluntarily agreed to join the conspiracy; and (3) that

one or more of the members of the conspiracy committed an overt act

to further the objectives of the conspiracy”. United States v.

Campbell, 64 F.3d 967, 975 (5th Cir. 1995).

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 Merhan asserts that his conspiracy conviction rested primarily

on Calvin’s testimony, which he claims was insufficient to persuade

a rational jury of his guilt. In this regard, Merhan maintains that

numerous other people known to Calvin had ties to the bank and

could have provided the account information.

However, “a [conspiracy] conviction may rest on the

uncorroborated testimony of an accomplice, even one who has chosen

to cooperate with the government in exchange for leniency, as long

as the testimony is not insubstantial on its face”. United States

v. Posada-Rios, 158 F.3d 832, 861 (5th Cir. 1998), cert. denied,

119 S. Ct. 1280, 1487, 1792 (1999). “Testimony is incredible as a

matter of law only if it relates to facts that the witness could

not possibly have observed or to events which could not have

occurred under the laws of nature.” Id.

Calvin testified that Merhan supplied him with information

regarding both Loh and Bokeloh’s accounts and that Merhan received

a share of the unlawfully-obtained money. Needless to say, this

testimony is not “insubstantial on its face”. Moreover, bank

records demonstrating that Merhan had accessed the Loh and Bokeloh

accounts, and Jimmy Ngo’s testimony linking Merhan to the fraud,

corroborate Calvin’s testimony and provide further evidence from

which a rational jury could find guilt.

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 b.

Merhan relies on essentially the same bases for his

sufficiency challenge to his bank fraud conviction. To establish

such fraud, pursuant to 18 U.S.C. § 1344(1), the Government must

prove that Merhan “knowingly execute[d], or attempt[ed] to execute,

a scheme or artifice — (1) to defraud a financial institution; or

(2) to obtain any of the moneys, funds, ... or other property owned

by, or under the custody or control of, a financial institution, by

means of false or fraudulent pretenses, representations, or

promises”. See also United States v. Schnitzer, 145 F.3d 721, 734

(5th Cir. 1998); Campbell, 64 F.3d at 975.

The above-described evidence of Merhan’s involvement in the

fraud scheme was also sufficient to prove beyond a reasonable doubt

that he committed § 1344(1) bank fraud. See United States v.

Barakett, 994 F.2d 1107, 1111 (5th Cir. 1993) (“While section

1344(1) prohibits only crimes directed at financial institutions,

we have not held that the statute punishes only schemes directed

solely at institutional victims”); United States v. Church, 888

F.2d 20, 23 (5th Cir. 1989) (even proof of extremely remote risk of

loss to bank suffices).

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 2.

As noted, Merhan also claims that the evidence was

insufficient to sustain a conviction for conspiracy to commit bank

larceny (the other charged object). He relies primarily on his

acquittal on the substantive bank larceny counts.

This acquittal-based contention is meritless. Needless to

say, acquittal on substantive charges does not mandate acquittal on

a corresponding conspiracy charge. E.g., United States v. Duvall,

846 F.2d 966, 975-76 (5th Cir. 1988).

Three persons testified that there was an agreement between

two or more persons to conduct a staged robbery of the branch.

Calvin testified that Merhan agreed to join the conspiracy and

provided information to the “robbers”; two other co-conspirators

testified that they knew Merhan to be the bank “insider” assisting

in staging the robbery. And, more than one conspirator committed

an overt act in furtherance of the conspiracy. Although the

evidence showing Merhan’s participation in the conspiracy is

primarily accomplice testimony, it is not “insubstantial on its

face”. Posada-Rios, 158 F.3d at 861.

3.

Serrano first claims that the evidence did not prove that he

was linked to the conspiracy, or agreed to assist with the staged

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robbery, or committed any overt act. But, Calvin and other co-

conspirators testified that Serrano acted as an intermediary

between Calvin and Merhan during the bank fraud and bank larceny

schemes; a co-conspirator testified that Serrano met with Calvin

and Merhan to discuss the staged robbery; and there was evidence

that Serrano made several large cash expenditures following the

staged robbery.

4.

To sustain a conviction under 18 U.S.C. § 2113(c) for receipt

of stolen money, Serrano’s other conviction, the Government must

prove that (1) he “receive[d], possesse[d], store[d], barter[ed],

[sold], or dispose[d] of” (2) money stolen from a bank (3) with

knowledge that the money was stolen. See United States v. Buchner,

7 F.3d 1149, 1152-53 (5th Cir. 1993) (§ 2113(c) is “intended for

those persons who receive the stolen property from the bank

robber”).

Serrano claims that there was insufficient proof that he knew

the money was stolen from the bank. But, Calvin testified that

Serrano assisted him and Merhan in planning the staged robbery; and

that, after the robbery, he gave Serrano a shoe box containing

$60,000. Another co-conspirator testified that Serrano met with

Merhan and Calvin to discuss the larceny. Again, this accomplice

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testimony is not “insubstantial on its face”. Posada-Rios, 158

F.3d at 860.

C.

Appellants challenge the district court’s multiple mistrial

denials when the jury indicated it was unable to reach a verdict.

It sent several notes to the judge along this line.

On the first day, the jurors advised that they were

“deadlocked”. Appellants moved for a mistrial. Instead, the judge

instructed the jurors to resume deliberations the next morning.

After deliberating for a total of about eight hours, the

jurors again advised that they were “locked”. Again, Appellants

moved for a mistrial. The district court refused to grant one and

gave the jury a modified Allen charge.2 Subsequently, the jury

requested that the testimony of five Government witnesses be read.

Appellants, once again, moved for a mistrial. The district court

instead instructed the jury to designate the portions of testimony

it wished to have read.

2
See Allen v. United States, 164 U.S. 492, 501-02 (1896) (not
error for a court to render supplemental instructions to a
deadlocked jury). The trial judge may remind the jurors of their
duty to reach a verdict and instruct them to consider the opinions
of the other jurors. Id. “While, undoubtedly, the verdict of the
jury should represent the opinion of each individual juror, it by
no means follows that opinions may not be changed by conference in
the jury room.” Id. at 501.

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 The final note asked: “If we find one defendant guilty of

Count 1, part A [conspiracy to commit bank larceny], and the other

defendant guilty of Count 1, part B [conspiracy to commit bank

fraud], does this make each defendant guilty of the entire Count

1?” Urging this indicated that the jurors were seeking a compromise

verdict, Appellants again moved for a mistrial. Instead, the

district court instructed the jurors to continue their

deliberations.

A mistrial denial is reviewed for abuse of discretion. United

States v. Sylvester, 143 F.3d 923, 929 (5th Cir. 1998). The first

two denials, which followed jury deadlock notes, were not such

abuses. When they transmitted the second note, the jurors had been

deliberating only slightly over eight hours. For example, our

court held that it was not an abuse of discretion to deny a

mistrial after the jury deliberated for seven days in a complex

bank fraud trial. United States v. Heath, 970 F.2d 1397, 1405-06

(5th Cir. 1992). The case against Merhan and Serrano was also

complex.

For the third denial, which corresponded to the testimony

request (written after the Allen charge), Appellants assert that

the jury note reveals that it interpreted the Allen charge as

requiring them to start over and surrender it conscientious

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conviction. The Allen charge specifically instructed the jurors

not to do so.

The final denial followed the note regarding the effect of

convictions. As before, Appellants maintain that the final two

notes revealed that the jury was trying to reach a compromise

verdict by surrendering its conscientious conviction because of a

coercive Allen charge. There is no evidence that a juror was

coerced; instead, the questions are consistent with conscientious

deliberations and the jury’s duty to render a decision in

accordance with the law.

Obviously, a district court has broad discretion to give an

Allen charge. United States v. Pace, 10 F.3d 1106, 1125 (5th Cir.

1993). Appellants do not challenge its content, and the

circumstances surrounding the charge being given were not coercive.

Heath, 970 F.2d at 1406 (deviation from approved charges cannot be

so prejudicial as to require reversal and circumstances must not be

coercive). As noted, our court found no abuse of discretion for an

Allen charge in a complex bank fraud trial where the jury remained

deadlocked after seven days of deliberation. Id. Likewise, giving

the Allen charge in this case, after less than two days of

deliberation, was not an abuse of discretion.

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 D.

Appellants challenge their sentences on several bases.

Application of the Sentencing Guidelines is reviewed de novo;

factual findings, for clear error. E.g., Sylvester, 143 F.3d at

931. A sentence will be upheld unless it was imposed in violation

of law or as a result of an incorrect application of the

Guidelines, or if it is outside the range of the applicable

guideline and is unreasonable. E.g., United States v. Wyjack, 141

F.3d 181, 183 (5th Cir. 1998).

1.

Merhan claims that he was erroneously sentenced under the

theft guideline, U.S.S.G. § 2B1.1, rather than the fraud guideline,

resulting in a higher base offense level. U.S.S.G. § 1B1.2(d) (“A

conviction on a count charging a conspiracy to commit more than one

offense shall be treated as if the defendant had been convicted on

a separate count of conspiracy for each offense that the defendant

conspired to commit”); see United States v. Fisher, 22 F.3d 574,

576 (5th Cir. 1994) (Ҥ 1B1.2(d) governs the application of the

Sentencing Guidelines to multiple-object conspiracies”).

Merhan acknowledges that, in accordance with § 1B1.2(d), the

district court found, beyond a reasonable doubt, that bank larceny

was an object of the conspiracy. See United States v. Manges, 110

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F.3d 1162, 1178 (5th Cir. 1997), cert. denied, 118 S. Ct. 1675

(1998) (district court may sentence on more serious of two charged

conspiracies if “district court itself would have convicted

[defendant] on that basis”); United States v. Cooper, 966 F.2d 936,

941 (5th Cir. 1992). He claims, however, insufficient evidence for

that finding, because he was acquitted of the substantive bank

larceny charges. But, as noted, that finding was not precluded by

the bank larceny acquittal. See Duvall, 846 F.2d at 975

(conspiracy and substantive counts are “separate and distinct

crimes” and “conviction on any count may stand if it is supported

by the evidence”); United States v. Jackson, 167 F.3d 1280, 1282

(9th Cir. 1999) (jury acquittal on substantive offense does not

prohibit application of § 1B1.2(d) at sentencing); see also Cooper,

966 F.2d at 941 (§ 1B1.2(d) properly applied where district court

found object of conspiracy was proven beyond reasonable doubt).3

2.

Appellants also assert that this § 1B1.2(d) application

deprived them of their Sixth Amendment right to trial by jury. Our

court has held otherwise. Manges, 110 F.3d at 1179 n.16.

3
Serrano adopts Merhan’s issues presented here. It is unclear
whether this issue is one he can adopt; assuming he can, it
likewise fails.

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 3.

The next challenge is to the relevant conduct used in

calculating offense levels. The amount of loss calculation is

reviewed for clear error. United States v. Sutton, 77 F.3d 91, 94-

95 (5th Cir. 1996).

Merhan contests the inclusion of the $392,000 loss from the

bank larceny; Serrano, any amount over the $60,000 he received from

Calvin. And, both contend they should not be held accountable for

funds related to the substantive counts of which they were

acquitted. However, the evidence supports the finding that each

conspired to commit bank larceny and bank fraud. The loss

calculations were not clearly erroneous.

4.

Appellants challenge each base offense level being enhanced by

two-levels for obstruction of justice, pursuant to U.S.S.G. §

3C1.1. We review only for clear error. E.g., United States v.

Gray, 105 F.3d 956, 971 (5th Cir.), cert. denied, 520 U.S. 1128,

1150, 1246 (1997).

“If the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice

during the investigation, prosecution, or sentencing of the instant

offense, increase the offense level by 2 levels.” U.S.S.G. §

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3C1.1. Perjury is a type of conduct to which the enhancement

applies. U.S.S.G. § 3C1.1 application note 3(b). If the district

court finds that a defendant committed perjury at trial, the

obstruction enhancement is required. United States v. Gonzalez,

163 F.3d 255, 262 (5th Cir. 1999); United States v. Humphrey, 7

F.3d 1186, 1189 (5th Cir. 1993).

Merhan and Serrano’s presentence investigation reports (PSRs)

did not recommend the enhancement. The Government objected,

claiming perjury by Merhan at the trial and by Serrano at the

suppression hearing.

At Merhan’s sentencing, and adopted for Serrano’s which

followed immediately thereafter, the district court stated:

Counsel [for the Government] cites examples of
each defendant’s trial testimony that they
believe is perjurious, in effect, perjury.

... The Court sustains this objection and
finds by a preponderance of the evidence that
Merhan and Serrano committed perjury during
their trial testimony; therefore, a two-level
adjustment for obstruction of justice will be
given to each defendant.

(Emphasis added.)

a.

Merhan asserts that the court failed to make sufficient

factual findings; and, in the alternative, that his trial testimony

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does not support the enhancement. This insufficient findings claim

is based upon United States v. Dunnigan, 507 U.S. 87, 95 (1993),

which provides that, “if a defendant objects to a sentence

enhancement resulting from her trial testimony, a district court

must review the evidence and make independent findings necessary to

establish a willful impediment to or obstruction of justice, or an

attempt to do the same, under the perjury definition we have set

out”. Merhan claims failure to make specific findings that each

perjury element was satisfied.

But, a detailed and specific finding on each perjury element

is not required. Id. (“[I]t is preferable for a district court to

address each element of the alleged perjury in a separate and clear

finding” (emphasis added)). Rather, “[t]he district court’s

determination that enhancement is required is sufficient ... if ...

the court makes a finding of an obstruction of, or impediment to,

justice that encompasses all of the factual predicates for a

finding of perjury”. Id. at 94.

A witness commits perjury if he “gives false testimony

concerning a material matter with the willful intent to provide

false testimony, rather than as a result of confusion, mistake, or

faulty memory”. Id. The district court referenced the

Government’s objection, which specifically cited Merhan’s testimony

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that he did not provide Calvin with information for the bank fraud

and bank larceny. The district judge’s statements at sentencing

and his reference to the Government’s objection reflect a finding

that Merhan lied when he so testified. See Gonzalez, 163 F.3d at

263 (affirming obstruction enhancement where court adopted PSRs and

“expressly stated its finding that each defendant perjured

himself”).

Of course, perjury requires materiality. Although neither the

Government’s objection, nor the district judge’s statements,

specifically address this, our court has upheld similar obstruction

enhancements where, “[e]ven though there was no explicit finding by

either the trial or sentencing judge that this testimony was

material, [the defendant’s] testimony on this topic was obviously

‘material’ in that it was clearly ‘designed to substantially affect

the outcome of the case’”. United States v. Cabral-Castillo, 35

F.3d 182, 187 (5th Cir. 1994); see United States v. Como, 53 F.3d

87, 90 (5th Cir. 1995); United States v. Storm, 36 F.3d 1289, 1297

(5th Cir. 1994). Likewise, it is obvious that Merhan’s identified

statements went to the very heart of the case against him and were

designed to affect the verdict.

Merhan challenges finding his statements perjurious; but, as

demonstrated supra, that finding was not clearly erroneous. See

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Dunnigan, 507 U.S. at 95-96 (“Given the numerous witnesses who

contradicted respondent regarding so many facts on which she could

not have been mistaken, there is ample support for the District

Court’s finding.”); United States v. Laury, 985 F.2d 1293, 1309

(5th Cir. 1993).

b.

The Government, for sentencing, claimed perjury by Serrano at

the suppression hearing when he “unequivocally testified [1] that

the officers and agents who arrested him and searched his apartment

and automobile did not advise him of his right to refuse to consent

to the searches and [2] that he did not consent thereto”. But,

regarding the right to refuse, Serrano did not so testify; instead,

he testified that he was informed of that right. At oral argument

on appeal, the Government corrected its error.

Serrano maintains that the second part of the Government’s

objection – that he testified he did not give consent – is also

incorrect because he testified that he did sign the consent form.

The Government agrees that Serrano did testify in that limited

respect, but maintains that the objection more broadly refers to

his testimony that consent was not given voluntarily. As the

Government points out, the issue at the suppression hearing was not

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whether Serrano gave consent; it was whether that consent was

voluntary.

We agree with the Government’s interpretation. The same

district judge presided over the suppression and sentencing

hearings; he was aware that Serrano had given written consent, but

had testified that it was not voluntary. Also, the district judge,

as noted, found that both defendants had committed perjury. See

Gonzalez, 163 F.3d at 263.

Further, the Government’s objection to Serrano’s PSR

specifically addressed materiality, noting that, had the district

court credited Serrano’s suppression hearing testimony, a large

amount of evidence would have been suppressed and the Government’s

case weakened substantially. Therefore, the district judge, by

reference to the objection, made sufficient findings to support the

obstruction enhancement.4

4
At oral argument, Serrano claimed yet another reason why the
perjury finding was not supported by the record — his testimony
could have been the result of mistake. However, Serrano’s brief
challenges only the sufficiency of the stated bases for the
findings. Normally, issues raised for the first time at oral
argument will not be addressed. E.g., Whitehead v. Food Max of
Mississippi, Inc., 163 F.3d 265, 270 (5th Cir. 1998); United States
v. Miles, 10 F.3d 1135, 1137 n.3 (5th Cir. 1993), cert. denied, 118
S. Ct. 1201 (1998). The necessity for this rule is obvious. This
contention is not an exception to it.
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 5.

Next, Merhan challenges his enhancement for abuse of a

position of trust: “If the defendant abused a position of public or

private trust, or used a special skill, in a manner that

significantly facilitated the commission or concealment of the

offense, increase [the offense level] by 2 levels”. U.S.S.G. §

3B1.3. According to the commentary, however, the adjustment does

not “apply in the case of embezzlement or theft by an ordinary bank

teller”. U.S.S.G. § 3B1.3, application note 1. “The application

of § 3B1.3 is a sophisticated factual determination reviewed under

the clearly erroneous standard.” United States v. Fisher, 7 F.3d

69, 70 (5th Cir. 1993).

The PSR (adopted by the district court) recommended the

enhancement. In response to Merhan’s objection, the probation

officer stated that Merhan’s behavior “in the bank larceny scheme

went beyond that of a mere teller” because he “provided the

security sensitive information regarding the bank vault

combination, [schematic] drawing of the facility[,] and security

codes to the co-conspirators”.

We must examine “the extent to which [Merhan’s] position

provides the freedom to commit a difficult-to-detect wrong”.

United States v. Brown, 7 F.3d 1155, 1161 (5th Cir. 1993) (quoting

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United States v. Hill, 915 F.2d 502, 506 (9th Cir. 1990)).

Generally, ordinary bank tellers do not occupy a position of trust

because, “although the teller’s position provides an opportunity to

embezzle money, reasonably diligent supervisors could easily detect

the wrongdoing after it has occurred”. Id.

Unlike an ordinary bank teller, Merhan was responsible for

opening the bank each morning; he knew the security codes; and the

bank gave him part of the combination to the main vault. See

Fisher, 7 F.3d at 70 (head cashier occupied position of trust

because she supervised another, could get money out of vault and

requisition money, and had only monthly spot checks). Further, his

supervisor trusted him with the rest of the combination. See id.

(noting that it was significant that defendant’s supervisor stopped

conducting spot checks because of her trust in defendant). These

factors placed him in a position of trust. See also United States

v. Gordon, 61 F.3d 263, 268 (4th Cir. 1995) (enhancement

appropriate where defendant, who was head teller with access to

security codes, facilitated armed robbery of bank); United States

v. Hathcoat, 30 F.3d 913, 919 (7th Cir. 1994) (“In determining

whether the defendant’s position was a position of trust, we must

analyze the situation from the perspective of the victim”).

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 Additionally, Merhan’s position significantly contributed to

the facilitation of the staged robbery. He provided his co-

conspirators with information regarding the dates of money drops at

the bank, the security codes, the opening procedures, and the

bank’s interior floor plan. Further, he unlocked the bank door,

disarmed the security system, and opened the vault for his co-

conspirators on the day of the larceny. See United States v.

Johnson, 4 F.3d 904, 916 (10th Cir. 1993) (vault teller’s position

facilitated bank robbery where she instructed others how to rob

bank and avoid detection and handed the money to the robber).

6.

Appellants contest their § 5K2.6 upward departures for

possession of a firearm by one of the co-conspirators during the

bank larceny. Decisions to depart upward are reviewed for abuse of

discretion. Koon v. United States, 518 U.S. 81, 91 (1996).

Appellants first contend that the trial evidence was

insufficient to support the statement in the PSR that a firearm was

used during the staged robbery. However, they do not demonstrate

that the statement was erroneous; Merhan testified at trial that

one of the “robbers” put a firearm to his head; and both state in

their briefs that one of the “robbers” had a gun. Additionally,

one of the “robbers” initially told investigators that one of the

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co-conspirators had a firearm during the staged robbery. Merhan

and Serrano have failed to show that the information in the PSR

relating to the use of a weapon is materially untrue. See United

States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996) (district court may

credit evidence for sentencing purposes that has “some indicia of

reliability”) (quoting United States v. Shacklett, 921 F.2d 580,

585 (5th Cir. 1991)).

Appellants also claim that the district court’s findings were

insufficient for us to review the propriety of the departure.5

“Before a departure is permitted, certain aspects of the case must

be found unusual enough for it to fall outside the heartland of

cases in the Guideline.” Koon, 518 U.S. at 98; see also United

States v. McDermott, 102 F.3d 1379, 1384 (5th Cir. 1996). The

district court did not specifically discuss why the firearm took

this case out of the heartland of the typical bank larceny case.

Section 5K1.0 states that “this subpart seeks to aid the court

by identifying some of the factors that the Commission has not been

able to take into account fully in formulating the guidelines”. At

5
Merhan also asserts, once again, that he should not be held
responsible for the firearm use because he was acquitted of the
substantive bank larceny charges. As noted, that acquittal does
not relieve him of liability as a co-conspirator in the bank
larceny.

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§ 5K2.6, the Commission identified the use of a weapon as one of

those factors:

If a weapon or dangerous instrumentality was
used or possessed in the commission of the
offense the court may increase the sentence
above the authorized guideline range. The
extent of the increase ordinarily should
depend on the dangerousness of the weapon, the
manner in which it was used, and the extent to
which its use endangered others....6

Thus, the Guidelines acknowledge that they do not adequately take

into account the use of a firearm in all offenses, and that this is

a proper ground for departure. Therefore, the Guidelines state

that use of a firearm takes a case out of the heartland of typical

cases; and the district judge’s reference to § 5K2.6 is sufficient

to support the decision to depart. See United States v. Lee, 989

F.2d 180, 183 (5th Cir. 1993) (“The Sentencing Commission permits

courts to depart from the guidelines where weapons are used in the

commission of an offense, see U.S.S.G. § 5K2.6, because such an

aggravating circumstance has not been given adequate consideration

by the guidelines”); United States v. Register, 931 F.2d 308, 314

(5th Cir. 1991) (“This court has upheld upward adjustments for mere

possession of a firearm”) (citing United States v. Otero, 868 F.2d

6
Our court has interpreted § 5K2.6 as referring “to crimes
that may be committed with or without the use of a weapon”. United
States v. Medina-Gutierrez, 980 F.2d 980, 983 (5th Cir. 1992).
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1412, 1414 (5th Cir. 1989); United States v. Hewin, 877 F.2d 3, 5

(5th Cir. 1989); United States v. Mueller, 902 F.2d 336, 345 (5th

Cir. 1990)).

In addition to referencing § 5K2.6, the district court gave

specific reasons for the extent of the departure, including its

concern that an innocent bystander could have interrupted the

staged robbery and been injured. These reasons are adequate; we

find no abuse of discretion in the extent of the departure. See

Lee, 989 F.2d at 183 (§ 5K2.6 departure will be upheld if extent is

reasonable; district court not required to give specific or general

reasons for extent).

7.

Finally, Serrano asserts that, because he was acquitted of the

substantive bank fraud counts, the district court erroneously

included in his $464,000 restitution (Merhan’s is for $432,000) the

$32,000 taken from a bank other than Wells Fargo. In any event,

consistent with his loss calculation claim, he contends that he

should not be ordered to repay an amount greater than the $60,000

he received after the staged robbery.

As discussed, the evidence was sufficient to find that Serrano

conspired in both bank fraud and bank larceny. Concerning the

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other bank, the district court relied properly on the PSR. The

restitution amount was not clearly erroneous.

III.

In the light of the foregoing, Merhan and Serrano’s

convictions and sentences are

AFFIRMED.

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