Lead Opinion
This sentencing appeal primarily raises the question of what evidence is sufficient to establish that the defendant held a position of trust for purposes of U.S.S.G. § 3B1.3 to support the imposition of a sentencing enhancement.
Defendant Karen Sicher, who was the sole employee of a surgeon and the charitable foundation for children’s medical care he started, pled guilty to ten counts of uttering forged securities, in violation of 18 U.S.C. § 513, ten counts of health care program theft, in violation of 18 U.S.C. § 669, and six counts of income tax evasion, in violation of 26 U.S.C. § 7201. The district court imposed a sentence of 36 months’ imprisonment on each count to be served concurrently, followed by 36 months of supervised release, and restitution in the amount of $334,639.
Sicher challenges her sentence on two grounds. First, she contends that the district erred in imposing a two-level sentencing enhancement for abuse of a position of trust, U.S.S.G. § 3B1.3. That enhancement increased her Guidelines sentencing range from 24 to 30 months to 30 to 37 months. Second, she argues the district court failed to consider evidence of her mental health, which she claims merits a downward variance. Finding no error, we affirm.
I.
The following evidence was part of the record before the district court at sentencing. The district court at sentencing is entitled to draw “fair inference[s],” United States v. Tejada-Beltran,
For ten years, Sicher worked as an administrative assistant and secretary to Dr. David S. Walton, a surgeon in ophthalmology specializing in children’s glaucoma, a leading cause of blindness for infants and toddlers. Dr. Walton was a “busy and focused surgeon” who had a heavy load of clinical duties and significant teaching responsibilities at Harvard Medical School, where he was a Professor of Ophthalmology. He spent long hours tending to his medical responsibilities.
Dr. Walton relied heavily upon the defendant, his sole employee and “trusted representative,” to run his medical office while he focused on these other demands. Indeed, Sicher perceived herself as having essential managerial responsibilities. She told the government in interviews that she took care of Dr. Walton on a day-to-day basis and that, for example, Dr. Walton did not know how to use an ATM. Utilizing her position as his assistant, Sicher stole at least $150,000 from payments to his medical practice.
In addition, Sicher played a second role which is particularly significant to the question of whether the enhancement was correctly applied. For seven of those ten years, for an additional monthly payment, she also handled all administrative tasks for the Children’s Glaucoma Foundation (“CGF”). CGF was a non-profit organized by Dr. Walton initially and dedicated to supporting programs for children’s glaucoma sufferers. The organization raises money and provides grants in support of programs to increase awareness of children’s glaucoma, two university based research studies on childhood glaucoma, and support of physician training in the care of affected children. The record before us does not show how many funds were raised for CGF, but the records show Sicher stole approximately $193,000 of those funds. Many families whose children were treated by Dr. Walton also devoted their financial and personal energies to supporting CGF.
The foundation had only two functions: fundraising and distributing the funds it raised through grants. Only two people were involved in the day-to-day management of CGF: Dr. Walton and Sicher. As said, Dr. Walton spent almost all of his time and energies in providing medical treatment to his patients, as well as fulfilling his academic and teaching responsibilities. This meant that the other responsibilities for CGF, particularly the management of fundraisers, fell largely on Sicher.
A. Sicher’s Dual Job Responsibilities
Hired in 1995, Sicher was Dr. Walton’s sole employee and was responsible for managing his medical practice. Her job responsibilities in Dr. Walton’s practice included welcoming patients, scheduling appointments, doing the bookkeeping, accepting and depositing co-payments and medical reimbursement checks, and reeeiv
In 1998, upon the founding of CGF, Dr. Walton asked Sicher to take on all administrative responsibilities for CGF. Her formal duties included accepting and depositing donations for CGF, informing Dr. Walton of any donations, and opening and reviewing CGF’s monthly bank statements. In practice, Sicher’s activities went well beyond her formal duties. Her duties were essential to the management of CGF; she effectively acted as the director of CGF. As said, Dr. Walton did not perform these tasks. She was the “face” of CGF, together with Dr. Walton, because of her active role at fundraisers and personal relationships with members of the foundation. The PSR also makes clear that she was “very visible and took an active role in certain fundraising events by selling tickets, playing host during the events and performing a meet and greet.” She also acted as the “point person” for the CGF annual charity golf tournament, working closely with a sports celebrity. This “very visible” role she played over a number of years was not that of a person performing ordinary clerical duties.
She did not merely accept monies raised by the foundation and act as the keeper of the accounts and books. There is evidence she was engaged with persons who did fundraising activities for CGF and then stole the money they had raised. She was installed in a position in which she developed significant relationships with the families and was the point of contact for fund-raising events. For example, a former CGF board member and parent of two patients testified that it was Sicher who gave her two daughters, then 11 and 13 years old, wrist bands to sell in their neighborhood in Connecticut as a fundraising effort. The girls went door-to-door, raising $300 in cash, which they gave to the defendant in a plastic bag. The defendant then took the money.
Moreover, in at least one instance Sicher was engaged with a family having a fund-raising event about which Dr. Walton knew nothing. A former CGF board member testified that she had held a fund-raising birthday party for CGF at her house, working with Sicher, who never told Dr. Walton about the event. Sicher received the money from the event but pocketed it for herself. The district court was certainly rational in not inferring that money raising drives originated and were managed sua sponte without any involvement by a representative of the charity.
B. Sicher’s Thefts
In these two roles, in which Sicher admittedly received minimal supervision, the defendant was able to steal from both Dr. Walton and CGF.
1. Thefts from Dr. Walton’s Practice
Beginning no later than September 2000, the defendant began to steal from Dr. Walton’s medical practice. She stole reimbursement checks sent to Dr. Walton from public and private health insurance programs for medical services by indorsing them with the forged signature of Dr. Walton and depositing them into her personal bank account. She took patient payments made by check to Dr. Walton as well as patient co-payments made in cash. She told one patient he owed an additional $1000 not covered by the insurance payment received and then, when the patient paid, pocketed the money. Dr. Walton did
Over the course of five years of thefts from Dr. Walton’s practice, Sicher stole more than 160 checks from more than 40 different insurers, totaling over $150,000. To carry out her thefts, the defendant made, without Dr. Walton’s authorization or knowledge, a signature stamp, which she used to forge Dr. Walton’s signature in indorsing the checks. Dr. Walton did not review the checks, and so did not observe this. The defendant also deleted various records of the surgeries Dr. Walton had performed for which payments were still due from the practice’s computer files.
2. Thefts from CGF
Sicher was also able to use her position to encourage fundraising for CGF, to steal from CGF’s bank account, and to steal funds meant to be deposited to the accounts. She took blank, unsigned checks for CGF, which were intended for funding research grants and for which Dr. Walton was the sole authorized signatory. Sicher made 61 of those checks payable to herself from CGF and deposited them into her personal bank account, taking a total of $172,995 from the CGF account. She also stole at least seven donations made by check from third parties for a total of $9,850. She used the signature stamp she had made of Dr. Walton’s signature to indorse the checks in order to carry out these thefts. She also took cash donations made to CGF, which the defendant told the government totaled approximately $10,170. These actions were admittedly taken without the authorization of Dr. Walton. They were also taken without his knowledge or permission. But it is not the formal job description which is at issue but the actual responsibilities of her job.
Sicher was able to conceal these actions because of the scope of her duties. For example, she, not Dr. Walton, was responsible for opening and reviewing CGF’s monthly bank statements, and presumably reconciling accounts. For at least five years, she showed Dr. Walton only the first page of the statements which show the balance for the CGF account. She destroyed the remaining pages that showed the cleared, forged checks. Dr. Walton deferred to Sicher’s representations about the finances of both his practice and CGF after seeing only the first page of the bank statements and did not conduct a supervisory review of her accounting.
Sicher was given increased responsibilities over the years because, Dr. Walton said, he trusted her and had confidence in her. His office essentially had no checks and balances on the discretion she had in both of her roles.
C. Dr. Walton’s Discovery of Sicher’s Thefts
In November 2005, Dr. Walton discovered the first evidence of Sicher’s thefts totally by chance. He was in the office on a Saturday and received and opened the office mail, which included a bank statement showing that a $25,000 check from CGF to a University of Georgia professor had been returned for insufficient funds. Dr. Walton knew that there should have been enough money in the CGF account for the check to clear; also he had been surprised not to have received an acknowledgment of the check from the professor. When Dr. Walton asked Sicher about the check, she stated that the check had been sent and that the professor had called to thank Dr. Walton. Dr. Walton then confronted Sicher about the check discrepancy, and she admitted to stealing $4,000 from the CGF account. Investigation es
D. District Court Proceedings
On January 16, 2007, defendant pled guilty to the 26-count information.
The pre-sentence report (“PSR”) submitted to the district court calculated an offense level of 22 under the Guidelines. The PSR recommended a two-level enhancement for abuse of a position of trust, U.S.S.G. § 3B1.3, a two-level enhancement for a misrepresentation that the defendant was acting on behalf of a charitable organization, U.S.S.G. § 2B1.1, and a three-level downward adjustment for acceptance of responsibility, U.S.S.G. § 3E1.1. Sicher’s criminal history was calculated at Category I.
The PSR’s recommendation that the abuse of trust enhancement should be applied was based on the discretion the defendant exercised in administering the medical practice and in managing CGF’s activities. The relevant facts included: that the defendant had an “extremely high level of trust based upon her ten-year professional relationship with Dr. Walton”; that she “was given substantial professional discretion to manage the financial and administrative functions of the office”; that Dr. Walton “gave the defendant considerable deference and relied upon her to conduct his daily affairs”; that Sicher “regularly attended and hosted fundraisers by the CGF” and was the “face” of CGF along with Dr. Walton; and that she had strong personal relationships with patients and families “who visited [Dr. Walton’s] office in hopes of finding a cure.” The PSR concluded that “the defendant was insulated from scrutiny, which contributed significantly to her ability to facilitate the theft and conceal it on an ongoing basis thereafter.” Defendant filed an objection to the PSR’s conclusion that the enhancement applied, but did not dispute the underlying factual assertions.
Sicher chose not to present any contrary facts with respect to her role at CGF and the medical practice to the district court. She only submitted evidence regarding her mental health disorders. In the mental health evidence, she told Dr. Reade, who evaluated her, that she “knew what records Dr. Walton scrutinized and which he ignored.” Sicher knew precisely how to take advantage of the discretion and minimal supervision she received.
During the pre-sentence hearing on July 12, 2007, defendant again objected that she did not hold a position of trust. Importantly, Sicher conceded that in fact she was not supervised. She attempted to blame Dr. Walton for this, saying .he was too busy and should have hired more staff.
Before hearing the witnesses at the sentencing hearing, on August 2, 2007, the district court stated it had given considera
The district court found that both Dr. Walton and CGF-were victims. The court heard statements from Dr. Walton as well as four current and former CGF board members, all of whom had children who were patients of Dr. Walton, and all of whom described their views that she was trusted by them, and that they took actions in reliance on that trust, and she had abused the trust. Sicher did not testify.
At sentencing, the district court also rejected defendant’s requested downward departure or variance based on the evidence she had submitted of her mental health conditions and announced the 36-month sentence.
Defendant now appeals her sentence.
II.
Sicher’s first argument is that the district court erred in applying the enhancement for abuse of a position of trust under U.S.S.G. § 3B1.3 because she did not hold a position of trust. Defendant contends that on the factual record presented in the district court, there was insufficient evidence for the court to conclude that defendant exercised the kind of “substantial professional or managerial discretion” necessary to support the enhancement.
Our caselaw has reviewed the propriety of a § 3B 1.3 enhancement under different standards. See United States v. Gonzalez-Alvarez,
Certainly, questions about interpretation of a guideline are reviewed de novo. Marceau,
To apply the enhancement, “the district court must first decide that the defendant occupied a position of trust and then find that [she] used that position to facilitate or conceal the offense.” United States v. Gill,
The district court did not specify the precise basis for the application of the enhancement, nor did it need to do so. “[W]e note once more that ‘a [sentencing] court’s reasoning can often be inferred by comparing what was argued by the parties or contained in the pre-sentence report with what the judge did.” United States v. Hoey,
In reviewing the district court’s conclusion, we review all of the information before the court. That evidence must be viewed as a whole and not atomized. United States v. Hilario-Hilario,
A. Guidelines Requirement
We begin with whether the government has shown by a preponderance of the
In evaluating the first step of the § 3B1.3 enhancement analysis, “the relevant inquiry ... is whether a person in fact occupied a position of trust, rather than whether the person’s title or official job description contained a discretionary element.” United States v. Chanthaseng,
Under our precedent, the district court’s implicit conclusion that Sicher held a position of trust characterized by managerial discretion cannot be reversed. The record shows that Sicher, through her roles in the medical practice and at CGF, in fact exercised a great deal of discretion and had little supervision. These roles must be considered together for purposes of the enhancement. What is conclusive for us is her role in CGF.
Were the enhancement based on Sicher’s secretarial role in Dr. Walton’s medical practice alone, this might be considered a more difficult issue. Cf. United States v. Tann,
The record is clear that Sicher in fact exercised considerable authority and discretion as to CGF; this is necessarily so, as she was unsupervised in a number of tasks as to receipt and disbursement of funds. First, Sicher opened and reviewed
Second, as the public face of CGF, she was entrusted to host CGF fundraisers and to take steps to facilitate the fundraisers such as dealing with celebrities and distributing items for sale. She also exercised discretion as to what fundraisers would be held in CGF’s name, not even disclosing them to Dr. Walton. Regardless of the defendant’s title, she essentially took over as the de facto manager and director of CGF.
Where a supervisor fails to review the financial transactions carried out by an employee, as here, effectively giving the employee significant discretion, we have held that the enhancement applies. Chanthaseng,
Other courts have applied the enhancement to employees who, despite their title, were in fact entrusted with substantial discretion. For example, in United States v. Laljie,
We recognize that testimony by individuals that they trusted someone who betrayed their trust does not itself establish that the position was a position of trust. The testimony, however, is not irrelevant. With growing trust by the employer and/or victim, an employee may be in fact given increasing levels of responsibility and discretion over time such that the position becomes one “characterized by professional or managerial discretion” without any change in title. That is true here. Our caselaw recognizes this as grounds to sustain a § 3B1.3 enhancement. In United States v. O’Connell, this court concluded that the closeness of the relationship between the defendant and the victim supported the district court’s finding that the defendant occupied a position of trust. O’Connell applied the enhancement to a bookkeeper who had forged the business owner’s name to the checks.
The testimony at Sicher’s sentencing hearing repeatedly emphasized the high level of trust Dr. Walton and others had in the defendant, which resulted in her having an even more important role in CGF.
Although Sicher is correct to argue that “trust” has a “special meaning” under the Guidelines, United States v. Reccko,
The cases upon which Sicher relies to argue that she does not occupy a position of trust, Reccko and Parrilla Roman, are easily distinguished. In Reccko, this court rejected the application of the enhancement to a police station receptionist/switchboard operator who possessed “no discernable discretion.” Reccko,
As to the second step, the record clearly shows that defendant used her position of trust to conceal her offenses.
Finally, we reject Sicher’s second claim of error that the district court failed to consider and to grant a downward variance on the basis of evidence of her mental health problems, including diagnoses of borderline personality disorder, major depression, and compulsive gambling disorder.
The record demonstrates that the district court in fact did consider the defendant’s mental health evidence, but simply did not find it persuasive. The district court stated, “Frankly, while I understand that, I regard it as an explanation rather than a justification.... Not the kind of mental state to excuse this criminal behavior.” Further, the district court did recommend that defendant receive mental health treatment in prison. The record thus refutes defendant’s second claim of error.
The sentence is affirmed.
—Dissenting Opinion Follows—
Notes
. The court is not restricted to drawing only those inferences compelled by the evidence. See United States v. Olivero,
. Dr. Walton’s testimony was that the practice was a "special place” in a unique environment that focused on particularly "complex and difficult patients.” While ophthalmologists ordinarily see 50 to 60 patients a day, Dr. Walton saw five to six patients on a busy day, spending considerable time with each. This close-knit medical practice had a small roster of patients whom Dr. Walton treated more intensively. Patients began seeing Dr. Walton as newborns, and he continued treating them through their teenage years.
. Defendant argued that she was "a secretary who worked without any clerical support and who was poorly and loosely supervised” and therefore did not occupy a position of trust. She further argued that her “ability to accomplish the thefts [was not] facilitated by the nature of the position she held.” The defendant objected that "[i]n the ordinary course in a well-run medical office, her position is not one in which the employee enjoys great discretion and 'significantly less supervision' than the usual clerical worker.”
The Probation Officer responded to the objection, slating that as Dr. Walton's sole employee, Sicher "was given substantial professional discretion to manage the financial and administrative functions of the office and the foundation.” Her claims that she was poorly supervised or that Dr. Walton's office was poorly run were "unfounded.” The Probation Officer maintained the recommendation that the enhancement applied based on the evidence of Sicher's discretionary responsibilities and the trust that Dr. Walton and the patients had placed in her.
. The district court declined to impose the enhancement for misrepresentation that she was acting on behalf of a charitable organization.
. Defendant argues, citing United States v. Garrison,
. While we have used the language of "de novo” review to apply to a trial judge's legal conclusion from the facts, we think this is more like a mixed question of law and fact, with a sliding scale of review depending on whether the trial judge’s conclusion is more law-oriented or more fact-driven. Recently the D.C. Circuit, recognizing (hat it had used
Several circuits state that they review the application of the Guidelines de novo and the district court’s factual findings for clear error. United States v. Spear,
Other circuits have framed the standard of review somewhat differently. See United States v. Dullum,
. The application note to § 3B1.3 was amended in 1993 to emphasize managerial or professional discretion and minimal supervision. See Parrilla Roman,
. Sicher was particularly close to the patients and trusted by them. For example, the secretary of the CGF board described how the defendant “latched onto us when we were perhaps the most vulnerable we've ever been.” Sicher was described as "accepted as a member of [the CGF board’s] family” and would call his wife six times a day.
. On appeal defendant does not contest that her position enabled her to conceal her offense.
Dissenting Opinion
dissenting.
The majority opinion is a curious blend of intimations and unjustified inferences. With its invocation of our authority to infer the reasoning of the able and experienced district court judge, who said that he “had given considerable time and thought to what the sentences would be,” the majority intimates that we should defer to the decision of the judge even in the absence of any explanation of his decision that appellant occupied a position of trust within the meaning of the guidelines. With its repeated invocation of the conclusory assertion of the PSR that Sicher exercised managerial discretion in carrying out her work for the CGF, an essential characteristic of a position of trust, the majority intimates that there is evidence in the record to support that assertion. Yet when the majority tries to identify specific instances of the exercise of such discretion, there is only an empty record. Therefore, I respectfully dissent.
In Part I of the dissent, I set forth the law that applies to the position of trust enhancement. In Part II, I apply the law to the facts of this case, first addressing appellant’s work as a secretary for Dr. Walton’s medical office and then her work for the Children’s Glaucoma Foundation (“CGF”). Although the majority chooses not to discuss appellant’s work as secretary to the medical office, I must do so because of my view that the position of trust enhancement was improperly applied. In my discussion of the application of the law to Sicher’s work with the CGF, I focus on the errors in the majority’s analysis.
I.
United States Sentencing Guidelines section 3B1.3 calls for a two-level upward adjustment when “the defendant abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense.” The application notes to this provision explain that a position of public or private trust refers to one “characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference).” U.S.S.G. § 3B1.3 cmt. n. 1. The notes further explain that:
Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature. For this adjustment to apply, the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense (e.g., by making the detection of the offense or the defendant’s responsibility for the offense more difficult). This adjustment, for example, applies in the case of an embezzlement of a client’s funds by an attorney serving as a guardian, a bank executive’s fraudulent loan scheme, or the criminal sexual abuse of a patient by a physician under the guise of an examination. This adjustment does not apply in the case of. an embezzlement or theft by an ordinary bank teller or hotel clerk because such positions are not characterized by the above-described factors.
Id.
We require sentencing courts to conduct a two-step inquiry to determine whether
With respect to the status inquiry, our cases — and the guideline itself — reveal that the requirement of managerial or professional discretion is “paramount.” United States v. Chanthaseng,
situation-specific decisionmaking that is given considerable deference precisely because it cannot be dictated entirely by established protocol. All of these individuals are charged with exercising their judgment in the best interest of another person or entity; this is the essence of the “professional or managerial discretion” to which the guideline refers.
United States v. Tiojanco,
This focus on the presence of managerial or professional discretion is necessarily fact-intensive, and the fact patterns will vary widely from case to case. Nevertheless, our precedent provides useful guidance. For example, in Chanthaseng,
We also found the position of trust enhancement applicable in United States v. O’Connell, 252 F.3d 524, 528-29 (1st Cir. 2001), where the defendant was an office manager with access to an $850,000 line of credit that he could use to transfer funds into his employer’s checking account. We concluded that “the authority to draw off the account suggests significant managerial discretion.” Id.
By contrast, we were not able to identify the presence of professional or managerial discretion in other cases. In Reecko,
We also rejected the application of the enhancement in Parilla-Roman,
Distinguishing positions with managerial authority from those without it can be difficult in the office setting, where employees often have a wide range of duties that must be scrutinized carefully to determine if they truly encompass managerial discretion. The difficult line-drawing that may be necessary in the office setting is illustrated by United States v. Tann,
In United States v. Edwards,
II.
In imposing the abuse of trust enhancement in this case, the district court made no factual findings on the record concerning the nature of appellant’s position and whether it required the exercise of professional or managerial discretion. The court had before it, however, the charging document to which appellant pled guilty, victim impact letters written by Dr. Walton on behalf of himself and the CGF, the victim impact testimony of Dr. Walton and parents of some of his patients, appellant’s psychiatric and compulsive gambling evaluations and, most importantly, the PSR. Appellant did not contest the objective facts set forth in any of these sources. The district court was entitled to accept those uncontested facts as true. United States v. Prochner,
In contrast to the objective facts (which include, for example, the specific tasks Sicher performed, the descriptions of events occurring during the course of her fraud, and the amount of money she stole), appellant did contest a critical conclusion drawn from those facts that would, if true, support the imposition of the position of trust enhancement. Namely, she contested the PSR’s assertion that she “was given substantial professional discretion to manage the financial and administrative functions of the office,” arguing in her sentencing memorandum that her job “was not one that was ‘characterized by professional or managerial discretion.’ ” Defendant’s Sentencing Memorandum at 2 (quoting U.S.S.G. § 3B1.3). Unlike the majority, I do not merely accept the PSR’s conclusion that appellant was given substantial discretion, or the district court’s unexplained finding that “the defendant did violate a position of trust.” The district court made no subsidiary findings of fact about whether appellant’s position afforded her managerial discretion. “In a case such as this one, in which the district court announced its decision to adjust upward without any subsidiary findings of fact, we ‘review the evidence and the result, [but] not the reasoning by which the result was reached by the district court.’ ” Chanthaseng,
The majority invokes the ability of the district court to make factual determinations by drawing reasonable inferences from the evidence, and our ability to infer a sentencing court’s reasoning under certain circumstances. Those propositions, while unquestionably correct, are irrelevant to this case. Whatever the intricacies of the review process here,
A. Administrative Assistant to Dr. Walton’s Medical Office
The PSR states that Dr. Walton relied on appellant to “conduct his daily affairs,” giving her “substantial professional discretion to manage the financial and administrative functions of the office.” These generalities, repeated by the government in its brief, draw no support from the specific responsibilities attributed to Sicher. Her specific duties, as set forth in the PSR, included ministerial tasks such as opening mail, welcoming patients, scheduling appointments, bookkeeping, and collecting and depositing payments. These kinds of ministerial tasks do not normally require “substantial discretionary judgment that is ordinarily given considerable deference,” U.S.S.G. § 3B1.3 cmt. n. 1, and the record gives us no reason to conclude that they did in this situation. Notably, the record does not reveal that appellant had authority to make spending decisions for the medical office, prepare a budget, approve or deny spending requests, or conduct any other discretionary task with respect to the “financial and administrative functions of the office.” While is true that appellant’s responsibilities gave her the opportunity to commit her crimes, they “reposed in her no discernable discretion.” Reccko,
B. Administrative Assistant to the Children’s Glaucoma Foundation
The following two paragraphs are the core of the majority’s erroneous reasoning about the significance of appellant’s work for the CGF:
The record is clear that Sicher in fact exercised considerable authority and discretion as to CGF; this is necessarily so, as she was unsupervised in a number of tasks as to receipt and disbursement of funds. First, Sicher opened and reviewed CGF’s monthly bank statements and then selectively gave information to Dr. Walton, who was only shown the bottom line of the account (i.e. only the first page, which only showed the total account balance). Indeed, she exercised autonomy over incoming donations, the payments of grants to researchers (as evidenced by the non-payment to one researcher), and maintenance of the accounting logs. She was essentially unsupervised by Dr. Walton as to these responsibilities and has never claimed otherwise.
Second, as the public face of CGF, she was entrusted to host CGF fundraisers and to take steps to facilitate the fundraisers such as dealing with celebrities and distributing items for sale. She also exercised discretion as to what fundraisers would be held in CGF’s name, not even disclosing them to Dr. Walton. Regardless of the defendant’s title, she essentially took over as the de facto manager and director of CGF.
These paragraphs contain both factual and legal errors. I will deal with the factual errors first, setting forth the assertions at issue in bold print.
1. Factual Errors
a. “Sicher opened and reviewed CGF’s monthly bank statements and then selectively gave information to Dr. Walton, who was only shown the bottom line of the account (i.e. only the first page, which only showed the total account balance).”
This statement only describes the technique of Sicher’s crime; her concealment
b. Sicher “exercised autonomy over incoming donations.... ”
Sicher “exercised autonomy” over incoming donations only to the extent that she was the sole person responsible for depositing them in the CGF’s bank account.
c. Sicher “exercised autonomy over ... the payments of grants to researchers.”
If this statement were true — for example, if Sicher had the authority to decide which researchers were to be paid, how much, or even when — that fact would indeed support the majority’s position that she exercised discretion in her role. However, there is no evidence to support that proposition. Certainly, the episode on which the majority relies to make the assertion (when Dr. Walton discovered appellant’s thefts because a check to a researcher was returned for insufficient funds) does not support the contention. Dr. Walton discovered the theft when, to his surprise, he saw that the check to the researcher had bounced; he knew that there should have been enough money in the account to cover it. That episode only supports the conclusion that Sicher, without the authorization or knowledge of Dr. Walton, drained the account of money. It cannot support the inference that Sicher had “complete autonomy” over research grant payments. While she might possibly have prepared the check to the researcher (a fact the record does not provide), she was, without question, unauthorized to sign it on her own.
d. Sicher “exercised autonomy over ... maintenance of the accounting logs.”
This statement is probably true. Sicher was the bookkeeper for the CGF as well as the medical office. As we indicated in O’Connell,
e. “[A]s the public face of CGF, [Sicher] was entrusted to host CGF fundraisers and to take steps to facilitate the fundraisers such as dealing with celebrities and distributing items for sale.”
Sicher was a “host” of CGF events only in the sense that she was a greeter and a “face” of the charity. The record shows that she was called on to use her social skills on behalf of the organization, not her managerial discretion. For example, the majority focuses on an episode, described at sentencing by the mother of a patient, when Sicher gave -wristbands to two girls who sold them to raise money for the charity. The disbursement of a fundraising item, and the subsequent theft of the money raised, does not reflect the use, especially not the authorized use, of managerial discretion. Nothing in the record indicates that Sicher planned, designed, or developed the bracelet fundraiser.
f. Sicher “also exercised discretion as to what fundraisers would be held in CGF’s name, not even disclosing them to Dr. Walton.”
Nowhere does the record support the contention that Sicher exercised discretion about what fundraisers would be held. The majority apparently draws this conclusion from the testimony about a birthday party held by a former member of the CGF’s Board of Directors, who said at sentencing:
[M]y husband and I had a birthday party in our home and every guest there donated money to the foundation, directly to the foundation. But, Dr. Walton never heard of this. Because, the defendant decided rather than to give this money to research and to study, she would put it in her own pocket. She would steal from my children, from all of these children.
This testimony describes Sicher’s use of the birthday party to steal money, not her exercise of discretion in planning and implementing the party. Nor does the testimony support the more general conclusion that anything about Sicher’s position — explicitly or implicitly — gave her authority to use discretion about what fundraisers to hold.
g. “Regardless of defendant’s title, she essentially acted as the director of the CGF.”
As I have indicated, the facts belie this wishful characterization. Strikingly, Sicher was paid only an additional $150 per month for her work on behalf of the CGF. That modest increment is not surprising. Contrary to the majority’s suggestions, the record does not indicate that appellant made any decisions on behalf of the CGF, such as determining how to fundraise, setting financial goals, or choosing how to spend its money. She did not have authority to write checks, prepare the budget, or supervise employees. Appellant’s position at the CGF afforded her access to the funds she ultimately stole, but it did not require the exercise of managerial discretion.
2. Legal Errors
The majority’s opinion attempts to draw too certain a connection between the lack of supervision and the exercise of discretion. The government makes the same error in its brief, suggesting that the sec
Likewise, the majority makes the error of equating simple trust with a section 3B1.3 “position of trust,” a link long rejected by this circuit. See Reccko,
The majority also embraces the government’s argument that our decision in O’Connell,
III.
There is no question that appellant committed a terrible “betrayal of trust” within the colloquial understanding of that phrase. Dr. Walton trusted her to deposit income into the medical office’s account, and his young patients and their families trusted that the CGF would benefit from the donations they gave to her for safekeeping and deposit. At sentencing, Dr. Walton and parents of his patients described the detrimental effect of appellant’s betrayal on their ability to trust others. The district court described her breach of trust as “egregious” and “an amazing violation of trust,” and I agree.
“The sentencing guidelines, however, create their own vocabulary — and the guidelines sometimes define terms in ways that might strike lay persons as peculiar. So it is here: in the idiom of the sentencing guidelines, the term ‘position of public or private trust’ has a special meaning.” Reccko,
Unfortunately, in an effort to affirm the district court, the majority has significantly diluted the guidelines’ concept of professional and managerial discretion. Moreover, contrary to our precedent, the majority comes perilously close to equating lack of supervision with the exercise of discretion. Thus, the majority’s conclusion that the application of the position of trust enhancement was proper in this case represents a sharp departure from our precedent and the once coherent body of law that applied to this issue. I respectfully dissent.
. I concur with the majority's rejection of appellant's claim that the district court failed to consider the evidence about her mental health.
. The full quotation from this decision refers to “complex, situation-specific decisionmaking.” Id. at 1021 (emphasis added). I think that the use of the adjective "complex” overstates this otherwise useful proposition.
. I note that some of Tann's responsibilities — such as hiring employees and managing expenditures, id. at 870-71, — might amount to managerial discretion under some circumstances. Such tasks are not at issue in this case, and I therefore need not decide whether they would reflect ''managerial discretion” in the context of appellant's job. Nonetheless, managing expenditures might well amount to ''managerial discretion” of the kind contemplated by the guideline, and I am uneasy with Tann to the extent that it concludes otherwise.
. I do agree with the majority’s suggestion in footnote 6 of its opinion that our review of the imposition of the position of trust enhancement ordinarily involves a "mixed question of law and fact, with a sliding scale of review depending on whether the trial judge’s conclusion is more law-oriented or more fact-driven.”
. The majority cites Chanthaseng,
. The PSR explains:
The CGF had a supply of blank, unsigned checks at Dr. Walton’s office, which were drawn off of the CGF account and intended primarily for use in funding research grants. During all relevant periods, Dr. Walton was the named trustee and sole authorized signatory on the CGF bank account. He neither delegated signature authority to Sicher, nor authorized, directed, or otherwise suggested that Sicher obtain a signature stamp with his name.
. The Second Circuit has more recently relied on the proposition that “applicability of a § 3B1.3 enhancement turns on 'the extent to which the position provides the freedom to commit a difficult-to-detect wrong.' " United States v. Allen,
. Importantly, we remarked in O’Connell that, taken alone, O’Connell's lack of legal signatory authority on the company’s checking account, and the fact that he clearly exceeded his authority by writing checks to himself, would have suggested “that it was not professional discretion that facilitated the commission of O’Connell’s crimes, but merely his access to the [company] checkbook.”