U.S. v. Sicher

• Decision Date: 07 August 2009
• Docket Number: No. 07-2414.,07-2414.
• Citation: 576 F.3d 64
• Parties: UNITED STATES of America, Appellee, v. Karen L. SICHER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

576 F.3d 64

UNITED STATES of America, Appellee, v. Karen L. SICHER, Defendant, Appellant.

No. 07-2414.

United States Court of Appeals, First Circuit.

Heard September 8, 2008.

Decided August 7, 2009.

Syrie D. Fried, Office of the Massachusetts Federal Defender, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, and Linda M. Ricci, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges.

LYNCH, Chief Judge.

This sentencing appeal primarily raises the question of what evidence is sufficient to establish that the defendant held a position of trust for purposes of U.S.S.G. § 3B1.3 to support the imposition of a sentencing enhancement.

Defendant Karen Sicher, who was the sole employee of a surgeon and the charitable foundation for children's medical care he started, pled guilty to ten counts of uttering forged securities, in violation of 18 U.S.C. § 513, ten counts of health care program theft, in violation of 18 U.S.C. § 669, and six counts of income tax evasion, in violation of 26 U.S.C. § 7201. The district court imposed a sentence of 36 months' imprisonment on each count to be served concurrently, followed by 36 months of supervised release, and restitution in the amount of $334,639.

Sicher challenges her sentence on two grounds. First, she contends that the district erred in imposing a two-level sentencing enhancement for abuse of a position of trust, U.S.S.G. § 3B1.3. That enhancement increased her Guidelines sentencing range from 24 to 30 months to 30 to 37 months. Second, she argues the district court failed to consider evidence of her mental health, which she claims merits a downward variance. Finding no error, we affirm.

I.

The following evidence was part of the record before the district court at sentencing. The district court at sentencing is entitled to draw "fair inference[s]," United States v. Tejada-Beltran, 50 F.3d 105, 113 (1st Cir.1995), from the evidence before it.¹ United States v. Marceau, 554 F.3d, 24 (1st Cir.2009) ("A sentencing court is entitled to rely on circumstantial evidence and draw plausible inferences therefrom." (internal citations omitted)).

For ten years, Sicher worked as an administrative assistant and secretary to Dr. David S. Walton, a surgeon in ophthalmology specializing in children's glaucoma, a leading cause of blindness for infants and toddlers. Dr. Walton was a "busy and focused surgeon" who had a heavy load of clinical duties and significant teaching responsibilities at Harvard Medical School, where he was a Professor of Ophthalmology. He spent long hours tending to his medical responsibilities.²

Dr. Walton relied heavily upon the defendant, his sole employee and "trusted representative," to run his medical office while he focused on these other demands. Indeed, Sicher perceived herself as having essential managerial responsibilities. She told the government in interviews that she took care of Dr. Walton on a day-to-day basis and that, for example, Dr. Walton did not know how to use an ATM. Utilizing her position as his assistant, Sicher stole at least $150,000 from payments to his medical practice.

In addition, Sicher played a second role which is particularly significant to the question of whether the enhancement was correctly applied. For seven of those ten years, for an additional monthly payment, she also handled all administrative tasks for the Children's Glaucoma Foundation ("CGF"). CGF was a non-profit organized by Dr. Walton initially and dedicated to supporting programs for children's glaucoma sufferers. The organization raises money and provides grants in support of programs to increase awareness of children's glaucoma, two university based research studies on childhood glaucoma, and support of physician training in the care of affected children. The record before us does not show how many funds were raised for CGF, but the records show Sicher stole approximately $193,000 of those funds. Many families whose children were treated by Dr. Walton also devoted their financial and personal energies to supporting CGF.

The foundation had only two functions: fundraising and distributing the funds it raised through grants. Only two people were involved in the day-to-day management of CGF: Dr. Walton and Sicher. As said, Dr. Walton spent almost all of his time and energies in providing medical treatment to his patients, as well as fulfilling his academic and teaching responsibilities. This meant that the other responsibilities for CGF, particularly the management of fundraisers, fell largely on Sicher.

A. Sicher's Dual Job Responsibilities

Hired in 1995, Sicher was Dr. Walton's sole employee and was responsible for managing his medical practice. Her job responsibilities in Dr. Walton's practice included welcoming patients, scheduling appointments, doing the bookkeeping, accepting and depositing co-payments and medical reimbursement checks, and receiving the practice's bank account statements. While he was busy providing medical services, Dr. Walton relied on the defendant, his "trusted representative in the office environment," to manage all the financial and administrative functions of the office. Through her position, she became personally close with many of the families of Dr. Walton's patients.

In 1998, upon the founding of CGF, Dr. Walton asked Sicher to take on all administrative responsibilities for CGF. Her formal duties included accepting and depositing donations for CGF, informing Dr. Walton of any donations, and opening and reviewing CGF's monthly bank statements. In practice, Sicher's activities went well beyond her formal duties. Her duties were essential to the management of CGF; she effectively acted as the director of CGF. As said, Dr. Walton did not perform these tasks. She was the "face" of CGF, together with Dr. Walton, because of her active role at fundraisers and personal relationships with members of the foundation. The PSR also makes clear that she was "very visible and took an active role in certain fundraising events by selling tickets, playing host during the events and performing a meet and greet." She also acted as the "point person" for the CGF annual charity golf tournament, working closely with a sports celebrity. This "very visible" role she played over a number of years was not that of a person performing ordinary clerical duties.

She did not merely accept monies raised by the foundation and act as the keeper of the accounts and books. There is evidence she was engaged with persons who did fundraising activities for CGF and then stole the money they had raised. She was installed in a position in which she developed significant relationships with the families and was the point of contact for fundraising events. For example, a former CGF board member and parent of two patients testified that it was Sicher who gave her two daughters, then 11 and 13 years old, wrist bands to sell in their neighborhood in Connecticut as a fundraising effort. The girls went door-to-door, raising $300 in cash, which they gave to the defendant in a plastic bag. The defendant then took the money.

Moreover, in at least one instance Sicher was engaged with a family having a fundraising event about which Dr. Walton knew nothing. A former CGF board member testified that she had held a fundraising birthday party for CGF at her house, working with Sicher, who never told Dr. Walton about the event. Sicher received the money from the event but pocketed it for herself. The district court was certainly rational in not inferring that money raising drives originated and were managed sua sponte without any involvement by a representative of the charity.

B. Sicher's Thefts

In these two roles, in which Sicher admittedly received minimal supervision, the defendant was able to steal from both Dr. Walton and CGF.

1. Thefts from Dr. Walton's Practice

Beginning no later than September 2000, the defendant began to steal from Dr. Walton's medical practice. She stole reimbursement checks sent to Dr. Walton from public and private health insurance programs for medical services by indorsing them with the forged signature of Dr. Walton and depositing them into her personal bank account. She took patient payments made by check to Dr. Walton as well as patient co-payments made in cash. She told one patient he owed an additional $1000 not covered by the insurance payment received and then, when the patient paid, pocketed the money. Dr. Walton did not monitor Sicher's representations to patients about the sums owed or himself review the deposits to see that the accounts were correct.

Over the course of five years of thefts from Dr. Walton's practice, Sicher stole more than 160 checks from more than 40 different insurers, totaling over $150,000. To carry out her thefts, the defendant made, without Dr. Walton's authorization or knowledge, a signature stamp, which she used to forge Dr. Walton's signature in indorsing the checks. Dr. Walton did not review the checks, and so did not observe this. The defendant also deleted various records of the surgeries Dr. Walton had performed for which payments were still due from the practice's computer files.

2. Thefts from CGF

Sicher was also able to use her position to encourage fundraising for CGF, to steal from CGF's bank account, and to steal funds meant to be deposited to the accounts. She took blank, unsigned checks for CGF, which were intended for funding research grants and for which Dr. Walton was the sole authorized signatory. Sicher made 61 of those checks payable to herself from CGF and deposited them into her personal bank account, taking a total of $172,995 from the CGF account. She also stole at least seven donations made by check from third parties for a total of $9,850. She used the signature stamp she had made of Dr. Walton's signature to indorse the checks in order to...