United States v. Cheryl Humphrey

America, STATES UNITED

Plaintiff-Appellee, HUMPHREY, Defendant-

Cheryl

Appellant.

No. 00-5180. Appeals, Court Circuit.

Sixth 4, 2001. Dec.

Argued 30, 2002. Filed Jan.

Decided and TN, TN, Greeneville, Eastern

vices Defendant-Appellant. KENNEDY, MOORE, and

Before COLE, Judges. Circuit OPINION MOORE, Judge. Circuit Hum- Defendant-Appellant Cheryl Ann jury (“Humphrey”) appeals her con- phrey for one count of em- and sentence viction funds, of 18 in violation bezzling bank 656, making counts of and five U.S.C. in- false entries bank records with defraud, in violation of 18 U.S.C. tent 1) district argues: that the 1005. She the meth- court abused its discretion over peremptory challenges exercising od 2) evidence; that the and the admission con- support is insufficient to evidence 3) victions; and the district court level un- improperly increased the offense Sentencing Manual der U.S. Guidelines (2000) (U.S.S.G.) § for of a abuse special of trust or use of a skill. AFFIRM convictions. court we conclude that the district Because 3B1.3, erroneously applied U.S.S.G. we RE- Humphrey’s sentence and VACATE resentencing. MAND for

I. BACKGROUND 1996, Humphrey From 1975 to was em- for Ham- ployed as a bank and vault teller Bank, SunTrust Bank ilton later known as (“Bank”), City, Tennessee. of Johnson a vault teller When became ten Humphrey acted as the head teller for briefed), (argued R. and Sarah Shults branches; responsibili- of the Bank’s Attorney, Green- Assistant counting ties included the contents ville, TN, Plaintiff-Appellee. for cash, coin, vault, Bank’s stored loose Voss, stamps, conducting various Paula R. Federal Defender Ser- and food (ar- vices, Knoxville, TN, the Federal Reserve Nikki Pierce transactions with C. (“Reserve”). briefed), Humphrey handled the gued and Federal Defender Ser- Bank stamps Humphrey pleaded to the Reserve shipment guilty proceed- of food trial, credit in the Bank’s accounts. jury ed where a found her guilty of charges. all On November Hum- (“Ma- Major Robert Odie late phrey filed a motion for judgment recently named Bank jor”), who had been trial, acquittal or arguing for a new concerned when he re- president, became any evidence was insufficient to sustain unusually an audit that showed an ceived of her convictions and that high stamps amount of food in the Bank’s court had in admitting bags erred coin imple- By early vault. the Bank filled styrofoam “peanuts” into evi- procedures required mented new dence. The district court overruled Hum- weekly shipment of food basis. phrey’s February motion. On 7, 1996, Humphrey prepared March On judgment district court entered and sen- $651,403 shipment worth of food Humphrey tenced thirty-six months on stamps to the Reserve. The ticket for this counts, each of the six to be concur- served shipment approved employees, was two rently, five-year and a supervised term of required by the Bank’s dual control 8, 2000, February release. On Humphrey policy. when the Bank inter- timely appeal. filed a notice of Turbyfill (“Turbyfill”) in viewed Tommi investigating previous ship- the course of II. ANALYSIS cleared, ment the Reserve had not Turbyfill approving denied 7 March Peremptory Challenges A. shipment signing or the ticket. Humphrey argues first that the 3,1996, September Major On confronted district court in refusing erred to allow her Humphrey discrepancy. about this When during jury to “backstrike” selection signed admitted that she had process.1 general note as a We matter ticket, Turbyfill’s gave initials he that we review a district court’s method option resigning being her the or termi- exercising peremptory challenges for for resign; nated. chose to an abuse of discretion. United question did not the Bank’s control dual (6th Mosely, Cir.), 810 F.2d 96 cert. policy or the reason for her termination. denied, 484 U.S. 108 S.Ct. 98 Humphrey’s resignation, groups After (1987). case, however, L.Ed.2d 87 In this employees two and four Bank counted the properly the issue was not raised before cash in the vault and discovered a total court; therefore, it $510,000. loss excess of preserved for us to Instead of review. 24, 1998, February grand objecting

On a federal to the content district jury against backstriking, indicted on one count of court’s rule defense embezzling argued funds in violation of forgotten 18 U.S.C. counsel that he had rule, making 656 and six counts of false en- overlooked the of which he had actual notice, tries in violation of 18 U.S.C. 1005. Be- because he was sick with the flu. trial, fore the district court granted legal the Defense counsel did not raise a issue essentially Government’s motion to 7 requested dismiss Count but that the district portion give opportunity and the forfeiture of Count 1. court him an to correct against backstriking preclude panel prospec 1. Local rules who are not struck after a exercising remaining per counsel from their jurors questioned tive has been become mem emptory challenges against jurors whom jury. bers of the actual See United States v. previously passed conducting counsel Anderson, (6th 1977). Cir. words, the voir dire. In other individuals inventory of showed an argue phrey counsel did Defense his mistake. $214,167.45 in coin. The Govern- loose preju- show could not that the Government videotape dated ment also introduced insuffi- dice, provides this contention 21, 1996, inside May that showed the area thus objection. We for an support cient loose coin was vault where the Bank’s this claim. to review decline purpose of the demonstrative stored. The Evidentiary jury Problems what B. evidence was to show and to establish bags coin look like would admis district court’s review a many that the vault did not contain of discretion. abuse sion of evidence bags were filled bags. of the 107 coin Six Hart, 854, 858 coins; were stuffed the remainder with denied, (6th Cir.1995), 517 U.S. approximate styrofoam peanuts to the (1996); see L.Ed.2d bags filled with coins. size Inc., 194 Roadway Express, Trepel v. also Cir.1999) the demon- objected counsel (citing Defense Gen. 716-17 stration, Joiner, 136, 141, arguing that the evidence 522 U.S. Elec. Co. bags filled with (1997), prejudicial for the because L.Ed.2d 508 than those filled styrofoam bigger evidentiary decisions that all proposition discretion). thought court coins.2 The district with are reviewed for an abuse expert hearing from an otherwise. After discretion has been scope “The of this bags filled construed, who stated that the trial court’s witness broadly representative of and styrofoam mani were unless with actions are to be sustained Galleries, in as the Inc. “about the same size” volume Persian festly erroneous.” coins, Co., court bags filled with v. Transcon. Ins. exhibit, Cir.1994) (internal noting that defense ci admitted the quotation marks and omitted). this issue on cross- counsel could raise tation (“J.A.”) Appendix at

examination. Joint Bags proceeded 1. Admission of Coin to do 215-16. Defense counsel later for the so. Witnesses Government claims that the district that much they testified that did not see admitting in court abused its discretion May on loose coin the Bank’s vault bags 107 coin evidence. as demonstrative any day. or on other as trial, At introduced the Government Rule of Evidence cash form Under Federal 6a a vault Government Exhibit “may 21, 1996, that is relevant be excluded May Hum- evidence dated verified the de- suggests appeal notified the court and on that the coin Government bags Appellant's probative bags "held no value.” fense that it intended to introduce $40,000 $20,000 defense counsel at trial Br. at 27. totaling to and addi- coins objection to the demonstration sole- $200,000 based his bags empty to show what tional ly ground bags not that all of the on explained look like. The Government would we’re told that "[W]hen filled with coins: $200,000 only portion of the would be that they're going of actual to do a demonstration $200,000 bringing coins because in actual that, way object coinage, we can there’s no logistical open present and secu- court would coinage; you're going that’s but what to find rity argument problems. Humphrey’s thus here all of this stuff here is not coin- is that prejudice, on the fact that the one of based age. only bags here that's There's four or five styro- bags Government introduced filled coinage, rest of it is fluff.” Joint and the bags empty peanuts rather than the foam ("J.A.”) Appendix at 206. pretrial conference. were discussed at the pretrial At a conference held before Inman, Magistrate Judge Dennis H. if its probative substantially value is out- employees Bank appears and it that they weighed by danger preju- unfair personal testified about their knowledge of In admitting dice.” Id. bags the coin into the vault’s contents. testimony Their was evidence, the district court did not ex- thus clearly admissible. weigh probative their pressly against value danger prejudice, of unfair it did 2. Exclusion of Memo recognize that the Government wanted the Humphrey argues that the district

jury see what bags would look like court abused its discretion excluding in the Bank’s vault. Reviewing this evi- hearsay a Bank memo dated August dentiary decision, we persuaded not are 1996, about a shipment of food stamps the district court abused its discre- from the Bank’s City branch, Johnson tion. appeal observes worked, where Humphrey to the Nashville the Government could have introduced “a branch, Peeks, where Ray Van Sr. photograph of bags 217[sic] actual coins (“Peeks”), was trial, the head teller. At placed “[ojther inside the vault” or used defense counsel asked Peeks whether he means of demonstration.” Appellant’s Br. “any independent recollection of the at question 31. The before the district dates when inquiries those court, however, occurred.” probative whether the J.A. at 388. Peeks answered that he value of did bags the coin substantially specific remember dates but did outweighed by danger recall preju- of unfair “the events place.” Although dice. took J.A. at the amount at issue was $214,000, He later excess of affirmed on have filled cross-examination would bags, he coin remembered Government the relevant introduced events. half that number. We therefore conclude 803(5) Federal Rule of Evidence pro- that the district court did not abuse its vides for the admission documents as admitting discretion in bags the coin as 1) recorded if recollections the witness evidence. 2) knowledge matter, once had about a the

Humphrey also contends that Gov witness now has memory insufficient to ernment witnesses should not have been 3) testify matter, about that and the docu- testify allowed about the number of coin ment was recorded when the matter was bags depicted that were in the Bank’s fresh in the mind and witness’s the docu- surveillance video of the vault. con correctly ment reflects the witness’s clude that this argument lacks merit. Not knowledge case, of the matter. In this only did object defense counsel fail to at Peeks stated that he remembered the trial, also Federal Rule of Evidence in question.3 events The district court provides 704 that “testimony in the form of correctly therefore excluded the memo. opinion or inference otherwise admissi objectionable ble is not argues because it also on appeal em braces an ultimate issue the by to be decided that memo could have been admitted fact,” the trier of exception with a limited aas business record under Federal Rule pertinent 803(6). not here. The witnesses were Evidence Because defense counsel suggested Faulkner, 724, (6th Defense counsel Cir.), at trial that the 727 cert. testimony denied, memo would assist Peeks in his and 640, 429 U.S. 50 his refresh recollection of the events. J.A. at (1976); Wright L.Ed.2d 624 28 Charles Alan course, 396. For this limited purpose, of Gold, & Victor James Federal Practice and the document would not have been intro- (1993). Procedure 457 at into duced evidence. United See

378 circum trial, us to view both requires exception at standard specific this not raise

did most light in a and direct evidence Fed.R.Crim.P. stantial plain error. we review exception prosecution. to the record favorable 52(b). The business (6th four re- Hofstatter, meets 324 the document v. if States available 1) denied, 1131, 114 in the course Cir.1993), “made 510 U.S. it was quirements: activity,” (1994). business “Cir regularly a conducted 127 L.Ed.2d 2) regular alone, [ ] in the course “kept if it was substantial cumstantial evidence 3) “regular business,” result of a it was the and may support a competent, verdict and such to create the business” practice of hypoth every reasonable not remove need 4) by per- documents, it “made Talley, F.3d except guilt.” esis transaction or knowledge of the Keeton, son with v. (quoting United States at 765 by person transmitted information from Cir.1996)). (6th F.3d Laster, knowledge.” United appeal on Humphrey contends Cir.2001) (citation (6th employees or namely Bank acts of others — omitted). requisite lay the A witness must transported food carrier that the armored to be admissi- for the evidence foundation Bank —or stamps and coin for the loose exception. record ble under business Bank’s have caused the clerical error could Hathaway, 798 F.2d sup- allegations are not losses. These Cir.1986). lay did such Peeks a scintilla of evidence ported even Indeed, when foundation. amount of substantial fail rebut memo had been court asked whether the supports circumstantial evidence records,” Peeks Bank an- “filed at trial The evidence jury’s guilty verdict. I swered, there. didn’t presume “I it was used showed morning.” until this J.A. copy of it have ship- the Bank’s teller record as vault not know where memo at He did food to the Reserve ments of Furthermore, the fact that kept. had been coin. shipments of or loose Because cash at least handwritten casts memo was the Bank for food the Reserve credited it a business some doubt whether appeared to stamps, the Bank’s books document. misrepre- clear. food the Bank’s sentations meant Sufficiency Evidence C. num- greater than the stamps balance was challenges the dis Humphrey shortage stamps on hand. The ber of food her motion for a court’s denial of trict the Bank to light came to when acted judgment acquittal on the insuffi of based food reduce its inflated balance. review de novo ciency of the evidence. We that life- Humphrey also maintains a motion. court’s of such district denial suggest do not style and her debt burden Talley, from Bank. that she embezzled funds (6th Cir.1999), denied, 528 U.S. course, spent money, of How (2000). L.Ed.2d bearing mon- has no on whether took claim, we must reviewing Humphrey’s notes, Moreover, as ey. the Government “whether, viewing the evi determine after Humphrey was indicted for and convicted favorable to the light dence in the most $1000, when the embezzling of than more fact prosecution, any rational trier of could approximately Bank’s total of losses elements found the essential have $510,000. Appellee’s Br. at 30. there- We Jack beyond a reasonable doubt.” crime 307, 319, evi- fore conclude that the circumstantial Virginia, U.S. son trier of (1979). for a rational dence was sufficient 61 L.Ed.2d 560 The Jackson doubt, find, authority cause she had used her as a beyond a reasonable vault fact to seniority prevent teller and her guilty of the crimes of that verification of the vault’s contents. In her convicted. she was objection to Report, the Presentence Hum- Sentencing D. § phrey inapplica- that 3B1.3 claimed position ble because she had not held a of court’s Humphrey challenges the district response, trust. In its the Government under to increase her offense level decision argued Humphrey’s that sentence should § position 3B1.3 for abuse of a of U.S.S.G. position for both of be enhanced abuse of special argues trust or use of a skill. She special trust and use of a skill. At the adjustment apply should not sentencing hearing, defense counsel chal- position of a vault those who hold the lenged enhancements. both teller. base offense level was specifically adopted district court the Gov- initially by calculated at then increased findings ernment’s list of that showed $500,000, points for a loss in excess of ten position abused her of trust points plan- for more than minimal two “acquired special knowledge skills and points position of a ning, and two abuse banking system serving while as a skill, special resulting of trust or use of helped vault teller and that these her com- of 20 and a a total offense level sentenc- mit and conceal her crimes.” J.A. at 54- range thirty-three forty-one ing 55. imposed The district court a sen- months. thirty-six months. tence 1. Abuse of Position of Trust questions review de novo We Sentencing The Guidelines com concerning application of the Sen law mentary describes a of trust as tencing Guidelines. United States by professional one “characterized or man (6th Cir.2001).4 Young, 266 F.3d (ie., agerial discretion substantial discre 3B1.3, may tionary judgment ordinarily given en- Under a district court deference).” by two sentence of a hance levels the considerable commentary, applic. defendant who has “abused a note The trust, adjust public private special application specifies or used a note that the skill, significantly apply in a manner that facili- ment would to “a bank executive’s tated the commission or concealment of fraudulent loan scheme” but not “embez ordinary Hum- theft tell the offense.” U.S.S.G. 3B1.3. zlement or bank phrey’s Report explained previously Presentence er.” Id. have established rather than the her sentence should be so enhanced be- the level discretion circumstances, ap Court In certain we review the 1278. The reasoned defer- Buford light appropriate ential review was of plication guideline undisputed "[i]n an fac of a decision, legal the fact-bound nature of the stan tual situation under a more deferential greater expertise comparatively of the Dis- the Ennenga, dard. 263 F.3d making trict Court factual determina- [in 499, (6th Cir.2001) (citing v. Unit 502 Buford tions], of uniform court and the limited value States, 59, 65-66, 532 U.S. ed precedent.” appeals of Id. at 1281. (2001)). Buford, In 149 L.Ed.2d 197 Supreme Court addressed "a narrow legal question raised in this Because the sentencing question of law” and affirmed the case is not so much fact-bound as it is tied to duties, deter fiduciary deferential review of a district court's exposition of we are not an prior by mination as to whether a defendant's compelled rationale to review the Buford’s "re under convictions were consolidated and thus enhancement of sentence sentencing purposes. deferential standard. lated” for 121 S.Ct. at a 380 recently upon is the definitive fac elaborated our supervision

amount of understand- a determining ing sentencing whether defendant of this enhancement: tor a trust. held and abused of Unit Ragland, Under the rationale for the (6th Hodge, v. 259 F.3d 556 ed States sentencing pun- enhancement akin to is Cir.2001). This discretion should be sub violating fiduciary duty, ishment for a encompass fiduciary-like re stantial and higher duty ordinary than the one (cit Young, 266 F.3d at 475 sponsibilities. placed employees all and breached Brogan, 238 F.3d ing United States relationship conversion. The trust (6th Cir.2001)). person organization arises when a or intentionally makes himself or itself vul- applies U.S.S.G. Whether particular posi- nerable to someone in a impression a matter of first vault teller is tion, ceding presumed to the other’s bet- issue, deciding In this in this circuit.5 we judgment ter some control over their commentary’s guided by are distinction Indeed, guideline examples affairs. ordinary teller between an bank and of where the enhancement is appropri- A obviously executive. vault teller bank correspond types ate to the of relation- in the of spec- falls somewhere middle this ships fiduciary where duties are often trum; Humphrey’s level of discretion was implied: physician-patient, lawyer-client, greater regular than that of a teller but officer-organization_ general In considerably presi- less than of a bank formation of these sorts of confidential dent. interdependent relationships socially Ragland, In United States v. 72 F.3d relationships require, beneficial. Such (6th Cir.1996), however, we faced a similar man,” situa- “faith in one’s fellow involving a employee tion bank generally whose which is undermined when an pocketing of paid by fraud consisted funds instance Ragland, of abuse occurs. deposit effect, customers certificates In Ragland at 503. sug- (“CDs”) forging signatures and gests important purpose bank that an on the Id. at holding officers CDs. 501. In private 3B1.3 is the defense of order- (or representative that this customer ing service based on presumably trust occupy public did not “a “public violated, or cases where trust” is trust,” private phrase we read this “a necessary as faith citizens must have in art, appropriating term of government some of the functioning for a well re- aspects legal concept of the of a public); separate trustee this wrong merits ad- fiduciary.” at Id. have more punishment. ditional Isaacson, cash, cash, receiving In United States v. delivery (9th Cir.1998), upheld the Ninth Circuit such counting verifying delivery, each cash application, based on the addi defendant's safeguarding key well as to the vault. Id. responsibilities tional as a vault teller and the at 916-17. lengthy fact that the defendant's service had emphasized Other circuits have the amount exempted security her from “all of the checks supervision applying 3B1.3. through.'' that other tellers went Id. at 1085. See, Fisher, e.g., United States v. Johnson, 4 F.3d 904 (5th Cir.1993) (defendant, cashier, denied, head be- Cir.1993), 510 U.S. gan supervisor stopped embezzle after her (1994), 127 L.Ed.2d 398 the Tenth conducting monthly spot-checks); United upheld application Circuit also the of the (8th Brelsford, States position sentencing abuse of a v. 982 F.2d of trust en teller, Cir.1992) (noting hancement a responsi to vault whose that the defendant was a ordering weekly tellers). bilities included shipments supervisor of teller who monitored other (citations fiduciary like did not involve duties omit- ties at 783 Brogan, 288 F.3d ted). in analysis highly instructive of a loan officer or an investment This those of a the abuse applying In Berridge, this case. consultant. Cf. Hum- to trust enhancement position (6th Cir.1996) of (holding sentence, court district phrey’s defendant, president was vice that the who findings list of adopted the Government’s division, a lending of the bank’s retail held of re- concerning extent trust). very The fact that the position of support the findings These sponsibilities. policy, Bank uses a dual control which court’s conclusion district employees verify to requires at least two supervision.” subjected to minimal “was counts, Humphrey was ac- suggests that example, For the Government at 54. J.A. addition, limited discretion. corded “routinely cir- noted operated by other internal controls procedures. ignored Bank cumvented” accounting and balance control de- Bank’s how- controlling question, at 46. The J.A. Bank partments should have notified the ever, Humphrey’s level of dis- is whether out of balance. Fur- the vault was fiduciary. con- that of a cretion was thermore, employees conducted business by not show a the record does clude that in vault under the surveillance of two Hum- preponderance of the evidence Humphrey abused her video cameras. relationship a trust phrey was such apparent position clerical and the Bank’s the Bank. from the trust to embezzle cash appears to have Although Humphrey Bank, did not hold a but she supervision, or no light been under trust. misrepresent possible it for her made ship- stamps food shipments of canceled Special Skill Use manipu- and to of cash or loose coin

ments shipments, she was not timing late the is drafted in the Because 3B1.3 profes- authorized to exercise substantial alternative, that she Humphrey must show posi- in her managerial discretion sional or trust nor used neither abused advantage take of her tion. did The com special in her offense. skill employees to con- seniority other Bank special states that mentary to 3B1.3 and to handle the daily trol the cash count skill members possessed is “a skill not in a she was not stamps. food usually requiring public general Bank such that relationship with the trust education, licensing. training substantial property or other- could administer its pilots, lawyers, include Examples would Brogan, See act in its best interest.6 wise accountants, chemists, doctors, and demo (distinguishing “employees 238 F.3d at 784 com experts.” lition property from another’s who administer case, the 3. In this mentary, applic. note it who only to handle those authorized Humphrey had found that district court (citing supervised”) lightly are knowledge of special skills and “acquired Tribble, serving as a Cir.2000)). system while banking Humphrey’s job responsibili- placed on cash ... emphasis had been "the as to Hum- evidence in the record 6. The timing ship- stamps were know that food phrey’s discretion over the she didn’t [and] cash,” Hum- though to the Reserve is inconclusive. Bank ments even same as manager apparently phrey told Bank way. J.A. same credit for both received higher priority shipping cash given she had at 189. shipping because than food rather 382 954, helped 116 877 and that these her com- U.S. 133 L.Ed.2d

vault teller Sonsalla, (1996); at 55. 241 her crimes.” J.A. mit and conceal cf. (7th Cir.2001) (reaffirming high graduate is a school necessary that “breach of trust is a ele if all most not of her work- spent who has ment of embezzlement under 18 U.S.C. apparently at the Bank. She has ing life not”); § 656” but “abuse of trust is training beyond or no education received Broumas, United States v. 69 F.3d resigned from the high school. When (D.C.Cir.1995) (collecting cases from working twenty there for over Bank after reject previously the five circuits that had salary years, approximate- her annual double-counting argument), ed the cert. de $18,000. ly The Government cites Hum- nied, 517 U.S. proce- in phrey’s “expertise accounting (1996). Humphrey argues L.Ed.2d 566 dures[,] manipulate which enabled her to that the funds in this case “intrusted appear the records to make the vault as if custody Ap to the or care of the bank.” balance, always in in fact it it was when fact, however, pellant’s Br. at 41. This is Appellee’s was not.” Br. at 46. irrelevant. Both a bank executive and an persuaded manipu- we are such ordinary bank teller can embezzle funds require lation would arithmetic skills more bank, only occupies from a the former possessed by than advanced those mem- position position of trust. The abuse of a general public. of the bers Cf. sentencing cap of trust enhancement thus White, tures posi the distinction between the two Cir.2001) (upholding application tions; it does not double count the offense. special skill enhancement to a defendant event, any part we have held in II.D.l highest category who held the license that position did not hold a Kentucky conferred to water treatment trust, possibility so there is no of double plant operators noting and that the license counting here. “requires training, annual educational courses, completion and of an examina- III. CONCLUSION tion”). prong Thus neither of U.S.S.G. applicable, and reasons, For foregoing we AFFIRM should be resentenced without the two- Humphrey’s convictions but her VACATE level enhancement. sentence REMAND resentencing and for opinion.

consistent with this Counting 3. Double KENNEDY, Judge, concurring Circuit Humphrey claims that the district part in dissenting part. in enhancing

court erred sentence position abuse of a of trust I opinion because the concur all of the Court’s already base offense level except holding accounted for that the district court Ragland, such conduct. In we determined erred in its determination that defendant applicable 3B1.3 is occupied position to defendants of trust under United §§ convicted of 18 U.S.C. Sentencing Guideline 3B1.3. Sec- but that provides the defendant that case did not tion 3B1.3 a two-level enhance- 501-03; hold a trust. 72 F.3d at ment if a defendant “abused Brown, see also public private United States v. ... in a trust manner (6th Cir.1995) (holding that significantly “abuse facilitated the commis- ” necessary trust [is not] element of the sion or concealment of the offense.... denied, embezzlement”), crime of commentary' guidelines The to the defines backlog to send the was by- fendant asked “characterized as one of trust position at stamps “as she could.” J.A. discretion.” food managerial professional I be- app n. 1. Because asked whether di- § 3B1.3 Defendant later modified, to find saying sufficient she was had evidence rective could be lieve the trust, I position Humphrey abused and was told there spoken to the auditor imposition court’s would affirm at 308. The be a variation. J.A. could trust enhancement. officer, Laws, abuse of spoke operation Ms. bank the di- determined the auditor and Trust Bank at Sun vault teller As head stamp the food balance rective to reduce Tennessee, twenty- and a City, in Johnson the directive be carried out. When should bank, defendant was the employee of year confirmed, she was defendant said from cash receiving excess responsible for she could. doing the best as food Trust as of Sun well ten branches cash, Excess stamps from those branches. tellers who the other Defendant trained branches, was de- at other if not needed counted in vault. She herself worked the in Bank Federal Reserve with the posited signatures Although two money. all the Nashville, stamps were Food Tennessee. to the on the forms sent required branch of to the Nashville also sent tellers, Reserve, the other ac- Federal redemption and Bank for Reserve Federal directive, defendant’s mere- cordance with from Receipts to the bank. credit cash on the if the amount entered ly determined to de- were returned Reserve the Federal the amount she had various forms contacted person was the and she fendant she packages. What was in the stated when the City Trust Bank Sun at Johnson money or food her count of stated was questions. had Federal Reserve defendant to train stamps. designating food when determined Defendant Trust was as- employees, Sun the other redemption. sent for stamps would be managerial duties. signing her verify all required her to Her tellers, Love, other one of the Terri cash and food vault and monies she, told her Mrs. that defendant testified the rec- shipments. She maintained stamp money all the to count Humphrey, had By record- transactions. the vault’s ord of count could not mon- the other tellers ship- stamp from food ing proceeds at 266-67. ey in the J.A. vault. cash to the Federal Reserve ments the evidence of totality of In view of the redemp- stamp rather than food deposits position in authority and defendant’s tions, to conceal her embez- was able she bank, was sufficient evi- I believe there time. for a substantial zlement to conclude defendant for the court dence 1996, the bank early In late 1995 or of trust. Until had a inventory approxi- showed records to decide when food the discretion at $827,000 stamps. J.A. of food mately or retained. be sent She stamps would there, having longer no 306. Most were respect loose with had similar discretion also redemption. She would been sent thousands dol- to be change, also found cash transactions entering records of delay lars short. so that the Federal Reserve with balance, appear records would bank’s shipment of timing Her discretion invento- they huge show although would to conceal her stamps enabled her food stamps. ry of food fiduciary. not a She was embezzlement. limited enhancement re- management directed new When “an ordi- was she Neither inventory, de- to fiduciaries. stamp demption of the food dealing She was nary bank teller.” (for branches, cash

ten their excess trans- Reserve),

mittal to the Federal their food

stamps, excess loose coin. The bank their responsibility

entrusted her with to send

on food as she determined. She responsibilities beyond those of ordi- discretion,

nary this de- tellers. Without

fendant would not have been able to exe- long

cute her scheme for as as she did. agree I that the decision of

While apply

district court to 3B1.3 is

treated in this question as a law Circuit novo, reviewing de are we review we

to see if defendant meets the minimum

necessary application guideline.

I uphold that she did and I would believe

the district court’s decision to increase de- posi-

fendant’s offense level for abuse of a

tion of trust. America,

UNITED STATES

Plaintiff-Appellee, GEORGIA, Michael

Willis

Defendant-Appellant.

No. 00-1917. Appeals, States Court of

Sixth Circuit.

Submitted Oct.

Decided and Filed Feb.

Case Details

Case Name: United States v. Cheryl Humphrey

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 30, 2002

Citation: 279 F.3d 372

Docket Number: 00-5180

Court Abbreviation: 6th Cir.