U.S. v. Brann, 92-7257

• Decision Date: 30 March 1993
• Docket Number: No. 92-7257,92-7257
• Citation: 990 F.2d 98
• Parties: UNITED STATES of America v. Fitzroy Calvin BRANN. Fitzroy Brann, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 98

990 F.2d 98

UNITED STATES of America v. Fitzroy Calvin BRANN.

Fitzroy Brann, Appellant.

No. 92-7257.

United States Court of Appeals, Third Circuit.

Argued Dec. 7, 1992.

Decided March 30, 1993.

Terry M. Halpern, U.S. Atty., Albert T. Ratliff (argued), Charlotte Amalie, St. Thomas, VI, for appellee.

Bruce Z. Marshack, (argued), Headley, LaMont & Marshack, Christiansted, St. Croix, VI, for appellant.

Before: BECKER, COWEN and ROTH, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge:

Appellant Fitzroy Calvin Brann appeals a sentence imposed upon him under the United States Sentencing Guidelines (U.S.S.G. or Guidelines) after he pled guilty to one count of Theft Concerning Programs Receiving Federal Funds in violation of 18 U.S.C. § 666. Brann was sentenced to fourteen months imprisonment, three years of supervised release, restitution of $18,000, and a special assessment of $50.

Brann cites three grounds for error in the sentence imposed upon him. First, he claims that the sentencing judge incorrectly applied a two level "abuse of trust" upward adjustment, pursuant to U.S.S.G. § 3B1.3, in a case in which the abuse of trust was already an element of the offense. Second, he contends that, even if such an adjustment were proper, it should not be applied to an employee in a low level position such as he held. Third, he claims that the sentencing judge erred in not crediting the period of Brann's pretrial house arrest in its sentencing calculation.

We reject all of Brann's allegations of error for the reasons stated in this opinion. Therefore, we will affirm the district court's judgment of sentence.

I.

The facts of this case are largely uncontested. From August 25, 1986, up until his arrest on March 25, 1991, Brann was employed as a narcotics agent by the Virgin Islands Narcotics Strike Force (NSF). The NSF is a law enforcement agency within the Virgin Islands Department of Law. The NSF received federal funds in excess of $10,000 during the year in which Brann committed the offenses at issue here. When he was hired as a drug agent, Brann had no prior law enforcement experience; nevertheless, he was placed directly into service without prior training and learned while on the job. Brann was one of two agents assigned to St. Croix. During his first eighteen months of service he made numerous arrests and seized many vehicles and thousands of dollars in cash which were forfeited to the Virgin Islands government.

In early 1988, after completing a year and a half as an agent, Brann received his first formal training at the Institute of Police Technology and Management (I.P.T.M.) in St. Augustine, Florida. He was trained for two weeks there in tactical techniques for street survival during drug deals. Subsequently, Brann received additional training by the federal and local authorities.

On or about January 1, 1991, and on or about February 8, 1991, Brann orchestrated two narcotics transactions. He obtained $9,000 for each transaction from the NSF to purchase a half kilogram of cocaine from a purported drug dealer. In order to carry out these "drug busts," Brann needed to obtain approval from his supervisor, Gaylord Sprauve, to work with an individual named Essam M. Suid. Brann arranged a meeting in St. Thomas between Sprauve and Suid. During this interview, Suid told Sprauve that he already had a drug transaction established that he could conduct with Brann. Sprauve authorized Suid to work with Brann. The proposed drug transaction was, however, fictitious. Suid told an F.B.I. Special Agent that Brann had instructed Suid to tell Sprauve that Suid already had a drug deal set up that he could work with Brann despite the fact that this was not true.

The first transaction took place in Frederiksted, St. Croix. Brann instructed Suid to take a package of cocaine from a person with whom he would meet, to count the $9,000 in cash for the benefit of a tape recorder he was wearing, and to keep the money rather than exchange it for the cocaine. Suid did as instructed and returned the money and the alleged cocaine he had received to Brann. A few weeks later, Suid conducted an identical transaction in St. Thomas. Suid again turned the money and the alleged cocaine he had received over to Brann.

Brann delivered the alleged narcotics to the NSF. He kept the money supplied by the NSF for the transactions. The Virgin Islands crime laboratory tested the alleged cocaine and determined that the two quantities showed a cocaine concentration of .004% and .005%. This minuscule amount of cocaine in the mixture would be neither acceptable to drug purchasers nor indicative of any marketable dilution or cutting of the cocaine.

On March 13, 1991, Gaylord Sprauve alerted the F.B.I. of the suspicious nature of the two narcotics transactions conducted by Brann. The F.B.I. subsequently conducted an investigation and Brann was charged with two counts of Theft Concerning Programs Receiving Federal Funds in violation of 18 U.S.C. § 666. On February 28, 1992, Brann pled guilty to Count II in exchange for a dismissal of Count I. Brann was sentenced on May 6, 1992. ¹ His offense level under the Sentencing Guidelines included a two level upward adjustment for an "abuse of trust." During the sentencing hearing Brann challenged the propriety of this upward adjustment for abuse of position of trust.

The United States Probation Office's presentence report computed a total offense level of 11 under the Guidelines: the base offense level for crimes involving fraud or deceit is 6, U.S.S.G. § 2F1.1(a); increased by three levels to reflect an amount of loss of $18,000, U.S.S.C. § 2F1.1(b)(1)(D); increased by two levels for more than minimal planning, U.S.S.G. § 2F1.1(b)(2)(A); increased by two levels for abuse of a position of trust, U.S.S.G. § 3B1.3; and decreased by two levels for acceptance of responsibility, U.S.S.G. § 3E1.1(a). The district court adopted the Probation Office's calculations at the sentencing hearing. Brann's timely appeal followed.

II.

The District Court of the Virgin Islands had jurisdiction over this case pursuant to 48 U.S.C. § 1612 and Title 4, Virgin Islands Code § 32. We have jurisdiction over this final judgment and commitment order of the district court pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

Brann claims that the district court misconstrued and misapplied an adjustment provision of the Guidelines in its application of the § 3B1.3 adjustment in determining the total offense level for a violation of 18 U.S.C. § 666(a)(1)(A)(i), an offense which appellant contends included in its base offense level an abuse of trust. Our review of such a legal issue is de novo. See United States v. Bierley, 922 F.2d 1061, 1064 (3d Cir.1990); United States v. Georgiadis, 933 F.2d 1219, 1224-25 (3d Cir.1991). Brann also claims that the district court erred when it found that his position as a narcotic agent was a position of trust. We also treat this question as a legal determination and give it de novo review. See United States v. McMillen, 917 F.2d 773, 775 (3d Cir.1990) (whether a position is one of trust is best characterized as an inquiry into the "interpretation of a guideline term").

III.

We will first consider whether the sentencing court properly increased Brann's base offense level by two levels under U.S.S.G. § 3B1.3 for abuse of a position of trust when Brann was convicted of violating 18 U.S.C. § 666. Thereafter, we will turn to Brann's argument that the district court improperly found that his position was one of trust.

First, Brann contends that the district court improperly applied the Guidelines § 3B1.3 in this case because abuse of a position of trust is an element of the crime of theft charged under 18 U.S.C. § 666 and is already accounted for by the assigned base offense level. U.S.S.G. § 3B1.3 provides in relevant part:

If the defendant abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels. This adjustment may not be employed if an abuse of trust ... is included in the base offense level or specific offense characteristic.

U.S.S.G. § 3B1.3 (emphasis added). Brann argues that "[i]t is inconceivable that a violation of 18 U.S.C. § 666 could occur absent an abuse of position of trust because "the very nature of the crime of conviction is an abuse of the position of trust." Appellant's Br. at 12.

In analyzing this argument, we must first look at the language of the statute. 18 U.S.C. § 666 provides in pertinent part:

Whoever, being an agent of an organization, embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies property that is valued at $5,000 or more and is owned by such organization shall be fined under this title, imprisoned not more than 10 years, or both. [The organization must receive in excess of $10,000 of federal assistance in any one year period].

18 U.S.C. § 666 (1992). Brann reasons that according to the statute's own language, the crime is incapable of being committed by a person not in a position of trust because the statute targets public agents who, by definition, occupy a position of trust.

This intuitive proposition that § 666 may not be violated by one other than a "person in a position of trust" because it targets public agents is, however, eroded by reference to the statute's definition of "agent":

the term "agent" means a person authorized to act on behalf of another person or a government and, in the case of an organization or government, includes a servant or employee, and a partner, director, officer, manager, and representative.

18 U.S.C. § 666(d)(1)(1992). The definition thus includes in the term "agent" an employee of any level from the lowest clerk to the highest administrator. It does not, however, include or require that the employee hold a...