U.S. v. Isaacson

• Decision Date: 02 September 1998
• Docket Number: No. 97-50155,97-50155
• Citation: U.S. v. Isaacson, 155 F.3d 1083 (9th Cir. 1998)
• Parties: 98 Cal. Daily Op. Serv. 6900, 98 Daily Journal D.A.R. 9556 UNITED STATES of America, Plaintiff-Appellee, v. Constance Rita ISAACSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1083

155 F.3d 1083

98 Cal. Daily Op. Serv. 6900, 98 Daily Journal

D.A.R. 9556

UNITED STATES of America, Plaintiff-Appellee, v. Constance Rita ISAACSON, Defendant-Appellant.

No. 97-50155.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 10, 1998.

Decided Sept. 2, 1998.

Brian A. Newman, Culver City, CA, for defendant-appellant.

Tammy Spertus, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Edward Rafeedie, District Judge, Presiding. D.C. No. CR-96-00742-ER.

Before: FLETCHER, FERNANDEZ and RYMER, Circuit Judges.

Opinion by Judge FLETCHER; Dissent by Judge FERNANDEZ.

FLETCHER, Circuit Judge:

Constance Rita Isaacson appeals the sentence imposed after her conviction of misapplication of bank funds in violation of 18 U.S.C. § 656. She claims that the district court erred in enhancing her sentence for abuse of a position of trust pursuant to U.S.S.G. § 3B1.3. We affirm.

I.

For over thirty years, Isaacson worked for the Bank of America at five different locations in southern California. From January 1994 to June 1995, Isaacson worked as a vault teller at the Chino Hills branch. Her duties included waiting on merchants, counting bags in the bank's vaults and balancing the account sheets.

At the beginning of each work day, Isaacson's teller box contained $50,000, and at the end of the day she was responsible for balancing the box by placing 100 twenty-dollar bills in plastic "poly-bags," which she was then to seal, date, badge stamp, initial and have initialed by a second person. After preparing the poly-bag bundle, she was to enter the amount of money in the bundle into a computer.

The Bank of America began investigating Isaacson after the Chino Hills branch reported that it was experiencing problems with missing funds and that Isaacson's teller box keys and account sheets were missing. This was discovered when a locksmith who had come to fix a doorknob at the branch was mistakenly told that there was a problem with Isaacson's teller box.

When confronted by a Bank of America investigator, Isaacson admitted that she had been stealing from the bank and signed a written confession. According to the investigator, Isaacson's involvement in the offense would inevitably have been discovered once her keys were noticed to be missing, but that the missing keys would probably have gone unnoticed were it not for the locksmith. Isaacson waived her Miranda rights and provided a written confession to the Federal Bureau of Investigation.

Pursuant to a plea agreement, Isaacson pleaded guilty to a one-count indictment of misapplication of bank funds in violation of 18 U.S.C. § 656. As part of the agreement, Isaacson admitted that she embezzled approximately $93,000 from January 1994 to June 1995. Isaacson embezzled the money by replacing 98 of the 100 twenty-dollar bills from her poly-bag bundle with one-dollar bills, leaving one twenty-dollar bill on top and one on the bottom of the bundle. She would then prepare the bundle as usual with the initials, date, seal and badge stamp, but would forge the second set of initials. She then balanced her box as if the poly-bag bundle contained the correct amount of money.

Eventually, Isaacson would only date stamp and initial the poly-bag with her own initials and the forged set of initials without performing the other security procedures for the bundles. Although auditors would count her box, she was not questioned until the incident with the locksmith. Both the Branch Manager and Operations Officer were subsequently fired for not requiring Isaacson to follow all of the normal security procedures.

Isaacson's plea bargain stipulated to an offense level of 10, derived from a base offense level of 4, plus 8 levels for the specific offense characteristic of loss of more than $70,000, minus 2 levels for acceptance of responsibility. The Pre-Sentence Report recommended an additional upward adjustment of 2 levels pursuant to U.S.S.G. § 3B1.1 for abuse of a position of trust, suggesting that the Branch Manager and Operations Officer placed an "extraordinary amount of trust" in Isaacson, and that they allowed her to short-cut the security procedures because she was a "long time and highly trusted employee."

At sentencing, Isaacson objected to the upward adjustment for abuse of trust, arguing that she was only an ordinary bank teller working part-time and earning $640 per month, and that the bank had foregone its security measures on account of understaffing rather than any particular trust in her. However, the district court found that Isaacson was not an ordinary bank teller but "a head vault teller," and that she was "someone [upon] whom a great deal of trust was imposed." The district court sentenced Isaacson to five months in prison followed by three years of supervised release, including five months of home detention with electronic monitoring. Isaacson timely appealed.

II.

Isaacson claims that the district court erred in applying the 2-level upward adjustment for abuse of a position of trust pursuant to U.S.S.C. § 3B1.3 to her sentence. "Because the propriety of applying an abuse of trust enhancement is a mixed question of fact and law, the ruling of the district court is reviewed de novo." United States v. Ferrin, 994 F.2d 658, 665 (9th Cir.1993) (citation omitted).

Section 3B1.3 provides that: "If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels." The Guidelines further explain "Public or private trust" refers to a position of public or private trust characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference). Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature. For this enhancement to apply, the position of 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, would apply 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 would 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.

U.S.S.G. § 3B1.3 (application note 1).

Pointing to the last sentence of the above-quoted passage, Isaacson argues as a preliminary matter that the terms of § 3B1.3 expressly cannot apply to her since hers was a case of embezzlement by an ordinary bank teller.

However, we agree with the Tenth and Fourth Circuits that the inquiry under § 3B1.3 is more complex than mere categorization of positions. See United States v. Johnson, 4 F.3d 904, 916 (10th Cir.1993) ("The guidelines look not only to the position of the defendant, but also to the acts committed to determine whether this defendant is 'more culpable' than others." (emphasis in original, citation omitted)); see also United States v. Gordon, 61 F.3d 263, 269 (4th Cir.1995) ("The abuse of trust enhancement was not designed to turn on formalistic definitions of job type." (citing Johnson )).

In Johnson, the Tenth Circuit upheld the application of § 3B1.3 to a vault teller, noting that she was responsible for receiving the delivery of cash directly from the armored car personnel and for counting and verifying each cash delivery, and that she carried the key to the vault. 4 F.3d at 916. Thus, the court concluded that the district court did not err in finding that "the bank entrusted her with responsibilities beyond those of the other tellers." Id.

This approach is consistent with our determination in United States v. Christiansen that an abuse of trust enhancement under § 3B1.3 requires more culpable conduct than a breach of trust and that the enhancement can only be applied to embezzlers "when the breach of trust was particularly egregious." 958 F.2d 285, 287 (9th Cir.1992).

Like the defendant in Johnson, Isaacson was entrusted with responsibilities beyond those of an ordinary teller. The district court found that she was head vault teller, ¹ and that, on account of her lengthy service, Isaacson was not required to undergo all of the security checks that other tellers went through. By abusing this special position of trust, she was consequently able to embezzle funds and evade detection.

Isaacson argues that it was inept supervision that allowed her to commit and conceal her offense and not any special trust placed in her. In support of this argument she cites United States v. Helton for the proposition that "being subject to lax supervision alone does not convert one's job into a 'position of trust' under section 3B1.3." 953 F.2d 867, 870 (4th Cir.1992).

In Helton, the Fourth Circuit upheld the district court's decision not to apply an enhancement under § 3B1.3. Id. at 868-69. Helton was employed as a cashier at the National Institute of Standards and Technology and was responsible for giving employees traveler's checks and cash for job related travel and purchases. Id. at 868. Although Helton had no discretion in whether to issue funds, her supervisor never audited the traveler's check portion of the funds. Id. Helton was ultimately convicted of embezzling over $20,000 in traveler's checks. Id.

In upholding the decision not to apply § 3B1.3, the Fourth Circuit noted that "Helton's superiors would have quickly detected the embezzlement had they not been, as ...