U.S. v. Berna, 92-4053
| Decision Date | 07 June 1993 |
| Docket Number | No. 92-4053,92-4053 |
| Citation | 995 F.2d 711 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gregory BERNA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Timothy O'Shea, Madison, WI (argued), for plaintiff-appellee.
Steven C. Underwood, Michael S. Heffernan (argued), Stolper, Koritzinsky, Brewster & Neider, Madison, WI, for defendant-appellant.
Before POSNER and FLAUM, Circuit Judges, and WILL, Senior District Judge. *
Gregory Berna pled guilty to one count of wire fraud and 28 other counts were dismissed. He was sentenced to 37 months for embezzling over $1 million. He appeals his sentence under 18 U.S.C. § 3742, claiming incorrect application of the sentencing guidelines. Berna argues that a two level reduction should have been granted under § 3B1.2(b) because he was a minor participant and that the amount he was responsible for embezzling was only $374,085 (falling under § 2F1.1(b)(1)(J)), not $1 million (§ 2F1.1(b)(1)(L)), and he should therefore be sentenced at a lower offense level.
Berna was employed by Roehl Trucking Co. and admitted to using their money wiring system (called "comcheks") to transfer money to people outside the company with whom he was ostensibly in partnership. Berna thought the two outsiders were legitimate businessmen, that the money he invested with them would bring a huge return, and that he would then repay the money he had taken from Roehl. (He also invested money from his personal savings.)
In fact, the two outsiders were con men and the money was never recovered, let alone returned with a profit. He went to Everett Roehl, president of the company, in February 1991 and admitted to transferring at least $250,000 of company money. Roehl told him that was embezzling. One of the con men was with Berna, and he told Roehl the same story that had hooked Berna about the great investment opportunity. Roehl did not fire Berna or report him right away, because he too hoped that the investment was legitimate and he would get his money back plus $6 million, plus a multi-million dollar loan at a favorable interest rate.
After confessing to Roehl, Berna continued to use the comchek system. Each time Roehl found out, Berna apologized and said that they had to make a slightly larger investment before the payoff would come, but that he would not do it anymore. He then proceeded to do it again. In April, Roehl told him that he could use the transfer system if he first paid Roehl for the amount of money he wanted to transfer. Berna gave him $31,000, but transferred more than that. Finally, it became clear that the money was not going to be repaid and Roehl turned Berna in.
Under Guideline § 3B1.2(b) a reduction can be granted for minor participation if the defendant is less culpable than most other participants. Judge Crabb held that, although the two other defendants had prior records and conned Berna, he was integral to the crime. Even though he intended to repay Roehl, he intentionally took money from Roehl. Berna was the only one who had access to Roehl's comchek system and the authority to use it. He was the only one who actually stole money, although the other two defendants worked to placate Roehl afterwards to keep him from blowing the whistle on their scheme.
We review the district court's decision for clear error, United States v. Cea, 963 F.2d 1027, 1032 (7th Cir.1992). Berna argues that the other two men were very bad people, while he has no prior record and in fact lost his own money in this crime, not just Roehl's money. As Judge Crabb pointed out, this may show that the other two men are worse people, but it does not show that Berna was less responsible for, or only a minor participant in, the crime that is charged here--which is wire fraud for taking money from his employer, not investment fraud for the scheme the money was "invested" in.
We made clear in Cea that although the guidelines refer to "culpability," this does not require some abstract assessment of character, but an examination of what actions the defendant took:
Cea's argument that the district court erred by examining his...
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U.S. v. Stafford
...he began embezzling from his employer. (We affirmed his sentence for embezzlement, under the wire fraud statute, in United States v. Berna, 995 F.2d 711 (7th Cir.1993).) He did this through the "Comdata System," a money-transfer system used in the trucking industry. When one of the drivers ......
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U.S. v. Jackson, 95-3884
...United States v. Smith, 80 F.3d 215, 222 (7th Cir.1996); United States v. Nobles, 69 F.3d 172, 190 (7th Cir.1995); United States v. Berna, 995 F.2d 711, 712 (7th Cir.1993). Rather, this court has held that when a defendant is sentenced only for the criminal conduct in which he directly enga......