U.S. v. Gunby, 94-8334

• Decision Date: 22 May 1997
• Docket Number: No. 94-8334,94-8334
• Citation: 112 F.3d 1493
• Parties: -2764, 10 Fla. L. Weekly Fed. C 960 UNITED STATES of America, Plaintiff-Appellee, v. Chester L. GUNBY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1493

112 F.3d 1493

79 A.F.T.R.2d 97-2764, 10 Fla. L. Weekly Fed. C 960

UNITED STATES of America, Plaintiff-Appellee, v. Chester L. GUNBY, Defendant-Appellant.

No. 94-8334.

United States Court of Appeals Eleventh Circuit.

May 22, 1997.

David F. Walbert, Charles R. Bridgers, Walbert & Hermann, Atlanta, GA, for Defendant-Appellant.

Charles E. Cox, Jr., Sharon T. Ratley, Miriam Wansley Duke, Asst. U.S. Attys., Macon, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before TJOFLAT and BIRCH, Circuit Judges, and SMITH ^*, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

Appellant, Chester L. Gunby, pleaded guilty to one count of mail fraud, 18 U.S.C. § 1341 (1994), and one count of tax fraud, 26 U.S.C. § 7206(1) (1994), for embezzling the filing fees collected by the Magistrate Court of Baldwin County, Georgia. The district court found that Gunby's criminal activities constituted "a significant disruption of a governmental function" under Sentencing Guidelines section 5K2.7, and it therefore departed upward from the recommended sentencing range of 21 to 27 months. See United States Sentencing Commission, Guidelines Manual, § 5K2.7, p.s. (Nov. 1, 1993). The district court sentenced Gunby to concurrent terms of forty-one months for his mail fraud conviction and thirty-six months for his tax fraud conviction. Gunby now appeals, challenging the applicability of guideline section 5K2.7 to his case and the sufficiency of the evidence supporting the upward departure. We affirm.

I.

A.

The Georgia General Assembly established the Small Claims Court of Baldwin County, Georgia, in 1967. See Act of Apr. 21, 1967, No. 588, § 1, 1967 Ga. Laws 3312, 3313. Gunby was appointed by Governor Busbee as Judge of the Small Claims Court of Baldwin County in 1975. The Small Claims Court operated on the basis of fees collected from litigants and from the city for the use of the court's services. These collections paid for the expenses of the court, and judges such as Gunby were entitled to keep the surplus for themselves. See § 5.

Popular discontent and constitutional problems ¹ with the fee system led the Georgia Assembly to phase out fees and phase in salary compensation for Georgia's judges. With respect to Gunby, the first step was the creation of magistrate courts. In 1977, the legislature created a magistrate court in Baldwin County. See Act of Mar. 23, 1977, No. 388, § 1, 1977 Ga. Laws 3197, 3198. According to this statute, the Judge of the Small Claims Court was to serve as the Magistrate of Baldwin County. See § 2. In 1977, Gunby was the Judge of the Small Claims Court, and he therefore became the Magistrate of Baldwin County as well. Under the 1977 Act, Gunby was paid a salary from the treasury of Baldwin County for serving as a magistrate. See § 7. Still, the 1977 Act apparently left unchanged the proprietary nature of the local court system. For example, the Magistrate of Baldwin County was required to pay the expenses of the court from his own salary. See § 8. By implication, Gunby could continue to profit from the court's operations.

In 1982, however, the Georgia Assembly replaced the fee system with a salary system for all local courts. See Courts of Limited Jurisdiction Compensation Act of 1982, No. 1488, 1982 Ga. Laws 1737 (repealed 1983). ² The 1982 Act required each county to elect one of two systems for paying a salary to any judge who "is compensated, in whole or in part, from fees." § 2(1). Under compensation plan "A," the county would pay each judge a fixed salary, and the judges would remit all the fees they collected to the county treasury. See § 5. Under compensation plan "B," the court would establish a trust fund from which an equal salary would be paid to all fulltime judges. See § 6. Each judge would account for all collected fees and remit them to the trust fund. § 6(c). It is unclear which system of compensation Baldwin County adopted for its small claims and magistrate courts, but neither system envisioned the retention of fees by judges.

In 1983, the Georgia legislature adopted a local law concerning the Baldwin County Magistrate Court. See Act of Mar. 14, 1983, No. 157, 1983 Ga. Laws 4027. First, the act created the position of chief magistrate. § 2(a). Gunby was soon appointed to this position. Second, the act provided for the creation of a magistrate court treasury: "All fees collected by the Magistrate Court of Baldwin County shall be paid into a depository at a chartered bank designated by the governing authority of Baldwin County." § 5(a). From the treasury, the chief magistrate was to pay his own salary and the salaries of the other magistrates and court personnel. Id. The act also stated, "The chief magistrate shall be placed on an annual salary, the amount of which shall be determined by the governing authority of Baldwin County." § 4(a). In short, by March 14, 1983, Gunby's jobs as small claims court judge and magistrate judge were both salaried positions, and Gunby was no longer entitled to pocket the fees collected by either court.

The 1983 Georgia Constitution abolished the small claims courts. Article 6 of the 1983 Constitution vested state judicial power exclusively in the magistrate courts, probate courts, juvenile courts, state courts, superior courts, Court of Appeals, and Supreme Court of Georgia. Ga. Const. art. 6, § 1, p 1 (1983). By implication, the small claims courts were eliminated. See Porter v. Calhoun County Bd. of Comm'rs, 252 Ga. 446, 314 S.E.2d 649, 651 (1984). Thus, after 1983, Gunby ceased to be a judge of the Small Claims Court and was only the Chief Magistrate of Baldwin County.

Later in 1983, the Georgia Assembly adopted a uniform system of compensation for the magistrate courts: "Magistrates shall be compensated solely on a salary basis and not in whole or in part from fees...." Act of Mar. 18, 1983, No. 429, § 2-1, 1983 Ga. Laws 884, 890 (codified as amended at O.C.G.A. § 15-10-23(d) (Supp.1996)). The 1983 Act repealed the 1982 Act, see § 7-1, 1983 Ga. Laws at 928, and therefore left local courts no choice about how to structure their salary plans. Instead of paying a fee to the magistrate for the service of a civil complaint upon an opposing party, for example, plaintiffs were required to pay "the actual cost of serving each party required to be served." § 2-1, 1983 Ga. Laws at 899 (codified as amended at O.C.G.A. § 15-10-80(b) (1994)). Under the 1983 Act, the only permissible form of compensation for a judge was a salary from the county, and judges were not to charge filing fees in excess of costs. ³

In conclusion, Gunby started his judicial career as Judge of the Small Claims Court of Baldwin County. In this capacity, he was authorized to profit from the operation of his court by charging fees in excess of costs and pocketing the difference. By 1983, however, this system had changed entirely. Gunby was no longer the Judge of the Small Claims Court. He was Chief Magistrate of the Magistrate Court of Baldwin County. This position entitled Gunby to no more than a salary set by Baldwin County. Gunby was no longer authorized to profit from the operation of his court.

B.

The new arrangement apparently did not suit Gunby. He devised two schemes to circumvent the laws limiting his compensation to a fixed salary. Both schemes involved siphoning off the surplus generated by the collection of fees paid by civil litigants who filed suit in Baldwin County. The first scheme centered on a sole proprietorship organized by Gunby that ostensibly engaged in the business of serving process on defendants.

As Chief Magistrate of Baldwin County, Gunby set the price for filing a civil complaint in Baldwin County at $20. The actual cost of delivering the complaint and a summons to the defendant was approximately $8. Under O.C.G.A. § 15-10-80(b), Gunby therefore should have only charged $8. Instead, Gunby charged $20 and channeled the remaining $12 into his own pocket.

Each $20 filing fee was deposited in the treasury of the Magistrate Court of Baldwin County, as directed by the 1983 local law. The court's treasury consisted of an account at the Citizen and Southern Bank of Milledgeville ("C & S Bank"). Gunby and his wife, who was also an employee of the magistrate court, were the only persons authorized to handle the funds in the C & S Bank account.

On June 9, 1983, Gunby and his wife opened an account in the name of the "G & G Constable Service" ("G & GCS") at the First Federal Savings and Loan Association ("First Federal"). On July 1, 1983, they began to withdraw funds from the court's account at C & S Bank and to deposit them into the G & GCS account at First Federal. From the G & GCS account, the Gunbys then paid two constables to serve process on the parties specified in each complaint. Gunby paid the constables $8 per complaint, leaving the remaining $12 in the G & GCS account.

The last deposit into the First Federal account was made on January 6, 1986. On January 15, 1986, Gunby and his wife opened a different account in the name of G & GCS at the Exchange Bank and began to deposit funds from the court's account into the Exchange Bank account. In early February, 1986, the Judicial Qualifications Commission of Georgia (the "JQC") started an investigation of Gunby based on allegations of corruption and nepotism in the Magistrate Court of Baldwin County. On February 25, 1986, the Gunbys closed the First Federal account.

The JQC investigation concluded some time during the spring of 1986. The last deposit into the G & GCS account at the Exchange Bank was made on April 2, 1986, and the Gunbys closed the Exchange Bank account on May 9, 1986. Gunby apparently closed the G & GCS bank accounts in response to the JQC investigation. By the time they closed these accounts, Gunby and his wife had transferred to the G & GCS accounts essentially all of the $20 filing fees paid by plaintiffs in Baldwin County...