United States v. Garcia

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-51074 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL E. GARCIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-1846-DB -------------------- August 29, 2002

Before JOLLY, JONES and PARKER, Circuit Judges.

PER CURIAM:*

Daniel E. Garcia appeals his conviction and sentence under

18 U.S.C. § 666 for conversion of federal funds. Garcia contends

that the district court’s denial of his requests for additional

funds for an expert witness deprived him of a fundamentally fair

trial. He asserts that the evidence was insufficient to

establish that he knowingly converted Amtrak funds. He

challenges the findings that the amount of loss exceeded $40,000

and that his offense involved more than minimal planning.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-51074 -2-

Determinations regarding the need for expert testimony are

made on a case-by-case basis. United States v. Theriault, 440

F.2d 713, 715 (5th Cir. 1971). The district court complied with

18 U.S.C. § 3006A(e)(1) and (3), which caps the compensation for

an expert witness at $1,000 and which provides that payment in

excess of $1,000 may be certified “as necessary to provide fair

compensation for services of an unusual character or duration” by

a judge if the expert’s “services were rendered in connection

with a case disposed of entirely before him.” Garcia did not

establish that the denial of pretrial certification of additional

funds under § 3006A(e)(3) was necessary to compensate and expert

for services of an unusual character or duration and that the

denial deprived him of a fair trial.

We determine whether any reasonable trier of fact could have

found that the evidence established the essential elements of the

offense beyond a reasonable doubt. United States v.

Ortega-Reyna, 148 F.3d 540, 543 (5th Cir. 1998). We consider the

evidence in the light most favorable to the Government, drawing

all reasonable inferences and credibility choices in support of

the verdict. Id.

Garcia’s sole challenge to the sufficiency of the evidence

is whether the Government proved that he knowingly converted

Amtrak funds. The evidence showed that Garcia was not making

timely bank deposits, he was substituting future sales to account

for prior missing funds in bank deposits, he was aggregating No. 01-51074 -3-

sales from various dates, and he was not keeping proper records.

He had access to the locked storage compartment for the Amtrak

sales, and he had knowledge of money shortages and incidents of

tampering with the locked box; yet, he did not report any

shortages or problems to superiors. Garcia admitted that he was

attempting to replace lost money. The jury was free to discredit

Garcia’s testimony that he did not take the money that was

missing from Amtrak. United States v. Martinez, 975 F.2d 159,

161 (5th Cir. 1992).

We review a finding on the amount of loss for clear error.

United States v. Hammond, 201 F.3d 346, 350 (5th Cir. 1999).

“The court need only make a reasonable estimate of the loss”

based on the evidence. U.S.S.G. § 2B1.1, comment. (n.3).

The evidence established that the total amount of loss

excluded expenditures that may have reduced the total amount of

loss as well as sales that may have increased the amount of loss.

The margin of error was plus or minus either way. The district

court adopted the amount of loss reported in the presentence

report, and Garcia did not present evidence to rebut the

presentence report; thus, Garcia has not shown clear error

concerning the amount of loss. United States v. Vital, 68 F.3d

114, 120 (5th Cir. 1995).

The district court correctly applied the 2000 version of the

Sentencing Guidelines, which authorized an offense level increase

for more than minimal planning. See 18 U.S.C. § 3553(a)(4)(A). No. 01-51074 -4-

Our review of the finding that the offense involved more than

minimal planning is for clear error. United States v. Lage, 183

F.3d 374, 384 (5th Cir. 1999). The increase for more than

minimal planning is warranted when “affirmative steps were taken

to conceal the offense” and is “deemed present in any case

involving repeated acts over a period of time, unless it is clear

that each instance was purely opportune.” U.S.S.G. § 1B1.1,

comment. (n.1(f)).

The evidence revealed shortages in Amtrak sales in the

period October 1996 through May 2000. During this period, Garcia

repeatedly made late deposits and used “lapping” and “lumping” to

conceal the cash shortages. Garcia has not shown that the

district court clearly erred by increasing his offense level for

more than minimal planning. Lage, 183 F.3d at 384. Accordingly,

the judgment of the district court is AFFIRMED.