United States v. Harbin

9 F. App'x 438
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 16, 2001
DocketNo. 00-6196
StatusPublished
Cited by2 cases

This text of 9 F. App'x 438 (United States v. Harbin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Harbin, 9 F. App'x 438 (6th Cir. 2001).

Opinion

PER CURIAM.

Defendant Gregory Harbin was convicted of one count of bank larceny and was ordered to serve 13 months in prison. On appeal, he now contests both the sufficiency of the evidence used to convict him and the propriety of a two-level obstruetion-ofjustice enhancement of his sentence. Finding no merit to the issues raised, we affirm the judgment entered by the district court.

I.

From May 1998 until February 1999, Harbin worked for Bantek, a company that contracted with servicers of automatic teller machines to replenish money supplies in those bank-owned conveniences. As part of his employment with the company, the defendant was, on occasion, required to drive from his Knoxville headquarters to Johnson City, Tennessee, approximately one and one-half hours away, to replace money in an automatic teller machine located inside a Target store. Once there, he would unlock the machine with a key and, using secret codes, access and fill the money drawers.

On Monday, May 17, 1999, three months after Harbin had resigned from Bantek and had returned his keys and uniforms to the company, another Bantek employee filled the Johnson City Target automatic teller machine owned by Union Planters [439]*439Bank with twenty-dollar bills. When the employee returned to that location on May 28, 1999, however, she noticed the machine’s transaction register indicated $9,980 had been stolen from the machine without anyone activating the security alarm or forcibly entering the machine. Furthermore, whoever perpetrated the crime had been savvy enough to leave money in the money drawers so as not to trigger an automatic warning to the bank that additional cash was needed, and thus lead to earlier detection of the theft. A more detailed check of the machine’s security features indicated an unauthorized entry into the machine had occurred between 5:14 p.m. and 5:16 p.m. on May 17, less than five hours after the machine had last been filled with cash by an authorized Bantek employee.

Learning that the Target store had a video camera trained on the general area where the automatic teller machine was located, Bantek officials requested and received permission to view store tapes recorded at the time of the theft. Upon examining those recordings, the Bantek supervisor noted that the individual seen opening the machine at 5:14 p.m. on May 17 was not a Bantek employee and was not dressed in the required Bantek uniform. Nevertheless, the individual shown on the tape had gone to great lengths to appear to be an individual authorized to be working on the automated teller machine. The man, immediately identified by the supervisor as Harbin, wore a light blue shirt similar to the Bantek uniform and carried a firearm and a money case, as did true company employees. In examining the video tape, the supervisor noted that the thief carried a gun like Harbin’s, displayed the same mannerisms as Harbin in performing tasks around the machine, and exhibited the same quirks Harbin did— from brushing his brow to moving his shoulders to keeping his keys to the machine in his belt while engaged in activity.

Similarly, other Bantek employees who viewed the videotape from the Target store in Johnson City indicated the person depicted opening the automated teller machine at the time of the theft was the defendant. After examining that tape, Harbin’s former co-workers also related that the person on the tape was the same height and build as the defendant, that the thief had the same personal mannerisms as Harbin, and that the person demonstrated the same idiosyncracies as the defendant while “working” on the machine.

Additional trial evidence adduced by the prosecution included testimony establishing Harbin had leased a safe deposit box only days after the theft at the Johnson City Target store. A search of that box by law enforcement officials revealed $2,000 in cash (although in $100 bills, not $20 bills). Other prosecution evidence included testimony regarding large cash payments made by Harbin on various past due accounts shortly after the theft, testimony detailing the defendant’s own admission of large stashes of cash within his home, and documentary evidence showing Harbin’s purchase of a uniform the defendant did not return to Bantek or any other company.

Harbin himself testified before the jury in his own defense and unequivocally denied any unauthorized access to the machine in question. He further offered the testimony of his wife and his mother-in-law who claimed the defendant was still asleep at 3:30 or 3:45 on the afternoon of May 17, 1999, and thus would have not been able to drive from Knoxville to Johnson City to steal from the machine and then return in time for the 7:00 dinner and television viewing at his mother-in-law’s home he typically enjoyed on Monday evenings. On cross-examination, however, the moth[440]*440er-in-law admitted she could not recall definitively whether Harbin had joined her on the specific day of the crime.

At Harbin’s initial trial, the jury reported it was hopelessly deadlocked and could not reach a unanimous verdict. Consequently, the district court declared a mistrial and rescheduled the matter for a second trial before a different jury panel. The second group of factfinders concluded Harbin was indeed guilty of the theft of more than $1,000 of Union Planters’s money from the automated teller machine and rendered its verdict accordingly.

In preparation for the sentencing hearing, the United States Probation Office compiled a presentence report assigning a base offense level of 4 to the crime committed. See U.S.S.G. § 2Bl.l(a). Because the amount of the loss suffered by Union Planters Bank exceeded $5,000, the offense level was increased an additional four levels. See U.S.S.G. § 2Bl.l(b)(l)(E). Two more levels were added because more than minimal planning was involved in carrying out the crime, see U.S.S.G. § 2B1.1(b)(4)(A), and the final calculation was augmented by yet another two levels for obstruction of justice, based upon the district court’s finding that Harbin perjured himself during trial by denying his guilt of the offense under oath. See U.S.S.G. § 3C1.1. With a criminal history category of I, Harbin thus faced a sentence range between 10 and 16 months. The district judge settled upon a punishment in the middle of the range, 13 months, and further ordered the defendant to make full restitution of the stolen $9,980 to Union Planters.

II.

Before this court, Harbin first alleges that the government’s evidence was not legally sufficient to establish his guilt of the charged offense. In analyzing a challenge to the sufficiency of the evidence adduced at trial, we must determine whether, viewing the trial testimony and exhibits in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In doing so, we must not reweigh the evidence, reevaluate the credibility of the witnesses, or substitute our judgment for that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th Cir.1993).

We are confident a rational trier of fact could conclude, beyond a reasonable doubt, that Harbin committed the offense charged.

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9 F. App'x 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-harbin-ca6-2001.