U.S. v. Ragland, 95-5336

• Decision Date: 04 January 1996
• Docket Number: No. 95-5336,95-5336
• Citation: 72 F.3d 500
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Linda Gail Stamps RAGLAND, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 500

72 F.3d 500

UNITED STATES of America, Plaintiff-Appellee, v. Linda Gail Stamps RAGLAND, Defendant-Appellant.

No. 95-5336.

United States Court of Appeals Sixth Circuit.

Argued Oct. 4, 1995.

Decided Jan. 4, 1996.

Harold B. McDonough, Asst. U.S. Atty. (argued and briefed), Nashville, TN, for plaintiff-appellee.

Mariah A. Wooten (argued and briefed), Federal Public Defender's Office, Nashville, TN, for defendant-appellant.

Before: JONES, NELSON, and NORRIS, Circuit Judges.

ALAN E. NORRIS, Circuit Judge.

Defendant Linda Gail Ragland appeals the district court's enhancement of her sentence for abuse of a position of trust under Sec. 3B1.3 of the United States Sentencing Guidelines, following her pleas of guilty to charges of embezzlement and bank fraud. We conclude that defendant did not occupy a position of public or private trust, as contemplated by the guideline.

I.

For nearly thirteen years, defendant worked at the First American National Bank in Cookeville, Tennessee, as a customer service representative. Her duties included opening accounts, assisting customers in balancing their accounts, and preparing certificates of deposit ("CDs") for signature by bank officers. Customers who desired to open an account or purchase a CD were directed to defendant, since tellers were not authorized to perform those transactions. It was her handling of CDs that landed defendant in prison.

The ordinary procedure for issuing a CD called for defendant to receive the customer's payment to the bank for the CD, defendant to type the CD, a bank officer to sign it, defendant to carry the payment to a teller, and for the customer to then receive the CD. Defendant had no authority to sign the certificate, and her role in this process was essentially secretarial. She apparently had some discretion to refuse to accept checks that appeared questionable, but once the customer and the form of payment were deemed satisfactory, defendant was required to follow the normal procedure.

At some point around 1987, defendant began pocketing funds paid by some bank customers for CDs, forging the signatures of bank officers on CDs, and then issuing them without noting the transactions in the bank's records. This practice turned into a Ponzi scheme of sorts when defendant used some of the stolen funds to make interest payments due on the CDs. By the time the scheme collapsed, defendant had issued approximately $1,167,000 worth of unrecorded certificates.

When the bank inevitably caught on, defendant was indicted and pleaded guilty to one count of bank embezzlement and four counts of bank fraud in violation of 18 U.S.C. Secs. 656, 1005. The presentence report of the probation department recommended a two-level sentence enhancement for abuse of a position of trust pursuant to U.S.S.G. Sec. 3B1.3. Defendant objected to this recommendation, but the district court decided that the enhancement applied, stating in open court at the sentencing hearing that

looking at it from the standpoint of the depositors [defendant] had a position of trust. She could take their money at any time, and she could not account for it, and she certainly took steps to conceal the crime. She had discretion in opening the accounts, and the only restriction on it was the fact that if they had trouble with a fellow before, the account holder before, she had to consult with the officer because she couldn't turn it down, but if she had dealings with them before on accounts she had discretion to use it, and certainly her position facilitated the commission and concealment of the offense.

Having made the two-level enhancement, the district court sentenced defendant to imprisonment for the maximum allowed under the guidelines, fifty-seven months.

II.

The sentencing guidelines provide for a two-point increase in a defendant's offense level "[i]f 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." U.S.S.G. Sec. 3B1.3. The application notes found in the commentary to this guideline define "public or private trust" as follows:

1. "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 nondiscretionary 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.

....

2. "Special skill" refers to a skill not possessed by members of the general public and usually requiring substantial education, training or licensing. Examples would include pilots, lawyers, doctors, accountants, chemists, and demolition experts.

U.S.S.G. Sec. 3B2.3, comment. (n. 1 and 2) (emphasis added). For the enhancement to apply, defendant must have been in a position of trust with respect...