555 F.3d 152 (5th Cir. 2009), 07-11029, United States v. Ollison

Docket Nº:07-11029.
Citation:555 F.3d 152
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marsha August OLLISON, Defendant-Appellant.
Case Date:January 06, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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555 F.3d 152 (5th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Marsha August OLLISON, Defendant-Appellant.

No. 07-11029.

United States Court of Appeals, Fifth Circuit.

January 6, 2009

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Renee Harris Toliver (argued), U.S. Attorney's Office, Fort Worth, TX, for U.S.

Robert N. Udashen, Gary Alan Udashen (argued), Sorrels, Udashen & Anton, Dallas, TX, for Ollison.

Appeal from the United States District Court for the Northern District of Texas.

Before WIENER, GARZA, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-Appellant Marsha August Ollison was charged by indictment with three counts of theft from an organization receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(A). A jury found Ollison guilty of all three counts, and the district court sentenced her to an eighteen-month term of imprisonment and a three-year term of supervised release. Ollison

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was also ordered to pay restitution in the amount of $64,633.

Dallas Independent School District (DISD) receives more than $10,000 in each fiscal year from the federal government in the form of educational or block grants. As an employee of DISD, Ollison was given a credit card, known as a procurement card (P-Card), in order to make official purchases on behalf of DISD. The jury found that Ollison used her P-Card to make unauthorized personal purchases exceeding $5,000 in each of the three fiscal years alleged in the indictment. For sentencing and restitution purposes, the district court found that Ollison used her P-Card to make personal purchases totaling approximately $64,633 during the relevant time period.

Ollison raises six issues challenging her conviction and sentence. Ollison argues that: (1) there is not legally sufficient evidence that she defrauded DISD of at least $5,000 in each fiscal year alleged in the indictment; (2) the district court erred in refusing to dismiss the indictment because it is unconstitutional to apply § 666 to low-level employees like herself; (3) the district court abused its discretion in allowing Special Agent Steven Sepeda to testify as a summary witness and to express his lay opinion regarding whether certain purchases were official or personal; (4) the district court improperly instructed the jury that Jimmy Talley, a defense witness, was not testifying as an expert; (5) the district court clearly erred in determining the loss amount for sentencing purposes and plainly erred in calculating the restitution amount; and (6) the district court clearly erred when it found that Ollison was subject to a two-level sentencing enhancement for abuse of a position of trust.

For the reasons explained below, we affirm the conviction but reverse the sentence and remand with instructions not to apply the enhancement for abuse of a position of trust.

I. FACTUAL & PROCEDURAL BACKGROUND

Ollison worked for DISD as a secretary in the office of the Superintendent. DISD received significantly more than $10,000 in each fiscal year from the federal government in the form of educational or block grants. The federal funds were used to pay the day-to-day expenses of DISD, including salaries, operating expenses, transportation, books, supplies, and equipment.

The P-Card program began in the late 1990s and ended in July 2006. Approximately 1,200 employees of DISD received P-Cards, which were only intended for official DISD purchases. Ollison signed a written agreement that the P-Card would not be used for personal purchases. This agreement stated the following: " I understand that under no circumstances will I use the procurement card to make personal purchases, either for others or myself." P-Card holders were required to maintain the original receipts for all purchases, which DISD could audit at unspecified times. When P-Card holders received a statement, they forwarded it to the DISD finance department, which directly paid the bill with DISD funds.

During the fiscal year ending June 30, 2004, Ollison's P-Card was used to make $14,093 in purchases. During the fiscal year ending June 30, 2005, it was used to make $52,007 in purchases, and during the fiscal year ending June 30, 2006, it was used to make $26,641 in purchases. The total amount charged on her P-Card during the three-year period was $92,742. Ollison was required to immediately reimburse DISD for any unauthorized personal purchases made with her P-Card, but she

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never reimbursed DISD for any of her purchases.

The Superintendent terminated the P-Card program in July 2006 after the Dallas Morning News ran a story detailing abuses in the P-Card program. This article revealed that numerous DISD employees used their P-Cards to make personal purchases. The Superintendent sent letters to all P-Card holders requesting that all receipts and records for 2004 though 2006 be submitted to the DISD legal office. Subsequently, the Superintendent expanded this disclosure request to include receipts and records for 2003 to 2004.

Special Agent Steven Sepeda of the FBI investigated whether Ollison violated federal law through her misuse of the P-Card. Sepeda testified at trial that he had an M.S. degree in accounting from the University of North Texas, and that he is a CPA. He worked in the financial departments of several private companies before joining the FBI approximately three years before trial, and he received training in forensics, fraud and corporate fraud, and had taught college accounting courses. Although Sepeda informed the jury of his professional qualifications, which suggested that he was an expert witness, he actually testified as a lay witness.

A comparison of the bank statements to the receipts revealed that, of a total of 756 transactions, Ollison submitted only 360 receipts. Of the 360 receipts she submitted, some 91 had been altered. Some receipts had information obscured with correction fluid or handwriting, some were cut to remove information, and others were complete fabrications or did not add up to the totals indicated. Sepeda testified that when he compared Ollison's spending patterns to other DISD employees with similar job positions, he did not identify any other similarly situated employee with spending comparable to Ollison.

Many of the receipts that Ollison did submit were consistent with personal use. These receipts included numerous clothing purchases from Dillard's department store, women's clothing and accessories from Marshall's and TJ Maxx Stores, including several " layaway" accounts. The receipts also included numerous grocery store and drug store purchases of items of a personal nature. Many of these receipts indicated that the purchase occurred in the evening or during the weekend.

On September 8, 2006, Sepeda and other investigators executed a search warrant at Ollison's residence. She was present and consented to speak with investigators after being advised of her Miranda rights. She admitted to the investigators that she had used her P-Card for personal purchases, explaining that " it just got comfortable, it got easy." She admitted that she used her P-Card for " routine grocery shopping" and for buying clothes, household accessories, and home internet service. She also acknowledged that she altered some receipts submitted to DISD. Ollison identified items in her residence that she had purchased with her P-Card. The investigators seized the items identified by Ollison and other items listed in the search warrant, including a DVD player, clothing items, fifty-six vases, and several framed prints.

Through interviews with Ollison's supervisors, Sepeda determined that Ollison was responsible for buying snacks for the office, such as candy, soda and coffee. She was also charged with purchasing condiments and flatware, arranging for catering through approved vendors, and providing for receptions.

At trial, Sepeda categorized Ollison's individual charges on her P-Card into one of three categories: personal expense, DISD expense, or undetermined expense. He

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considered a variety of factors in reaching his conclusions: (1) the identity of the vendor; (2) the location of the vendor; (3) whether DISD had an approved vendor for the item purchased; (4) the day and time of purchase; (5) whether the receipt had been altered or fabricated; (6) whether a receipt had, in fact, been submitted by Ollison; (7) whether there were additional items on the same receipt; (8) whether there was a pattern of purchases; (9) whether sales tax was paid or a tax-exempt certificate was used for the purchase; and (10) Ollison's admissions to investigators. Sepeda testified that he considered all these factors when evaluating each individual charge, and that none of them were dispositive in making his conclusions.

Based on his review, Sepeda determined that (1) during the fiscal year ending June 30, 2004, Ollison's P-Card was used to make $12,436 in personal purchases; (2) during fiscal year ending June 30, 2005, it was used to make $28,373 in personal purchases; and (3) during fiscal year ending June 30, 2006, it was used to make $15,480 in personal purchases.

The defense presented Dr. Al Sullivan, a retired school administrator who worked at DISD from 1970 to 2005. He testified that he was experienced in conducting educational audits to ensure that the school district money was being spent properly. Sullivan identified various items that could have been legitimately purchased by Ollison for official DISD purposes.

The defense also presented Jimmy Talley, CPA, who testified that he had reviewed the Government's exhibits and Ollison's receipts. Talley stated that it was...

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