                                                                        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       This order and judgment is not binding precedent, except under the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,


                                          -3-
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.

                                          -4-
      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

                                         -5-
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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