U.S. v. Tribble, PLAINTIFF-APPELLEE

• Decision Date: 03 February 2000
• Docket Number: No. 99-5116,PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,99-5116
• Citation: 206 F.3d 634
• Parties: (6th Cir. 2000) UNITED STATES OF AMERICA,, v. MICHAEL LYNN TRIBBLE, Submitted:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 634

206 F.3d 634 (6th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. MICHAEL LYNN TRIBBLE, DEFENDANT-APPELLANT.

No. 99-5116

U.S. Court of Appeals, Sixth Circuit

Submitted: February 3, 2000

Decided and Filed: March 08, 2000

Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville. No. 98-00019--Thomas G. Hull, District Judge.

M. Neil Smith (briefed), United States Attorney's Office, Greeneville, TN, for Plaintiff-Appellee.

David L. Leonard (briefed), Leonard & Kershaw, Greeneville, TN, for Defendant-Appellant.

Before: Merritt and Moore, Circuit Judges; Heyburn, District Judge.^*

OPINION

Merritt, Circuit Judge.

This appeal arises from defendant Tribble's conviction, upon a guilty plea, for misappropriation of postal funds under 18 U.S.C. § 1711. Tribble was employed by the United States Postal Service as a window clerk in Kingsport, Tennessee. He used his position to embezzle approximately $42,000 during late 1996 and early 1997. At sentencing, Tribble was assessed a two-point enhancement under United States Sentencing Guidelines §3B1.3, which provides for such an enhancement if the crime was facilitated by a "position of trust." Tribble now appeals the District Court's decision that his position as a postal window clerk was a position of trust. We review de novo the District Court's determination that Tribble occupied a position of trust for the purpose of the Sentencing Guidelines. See United States v. Ragland, 72 F.3d 500 (6th Cir. 1996); United States v. Dixon, 66 F.3d 133 (6th Cir. 1995).

According to the facts in this case, Michael Lynn Tribble was employed as a window clerk in the Kingsport, Tennessee, post office from 1991 until 1997. Tribble was routinely issued stamps and money orders as a function of his job. In addition, Tribble had access to the IRT or Integrated Retail Terminal, a computerized system in which all transactions were to be logged. From September 1996 through February 1997, Tribble received nine checks marked to "Postmaster" from business customers for resetting their postage meters. Tribble accepted the cash and entered the transactions into the computer. He later voided the transactions and retained the cash. Postal window clerks are audited only infrequently, but they are required to submit a daily financial report. The report is a printout of the transactions conducted using the IRT. Because he voided the transactions, they did not appear as cash received in his reports. Tribble was then able to issue money orders to himself from the excess cash in his possession, thus avoiding the problem of attempting to cash the checks.

Under United States Sentencing Guideline § 3B1.3, "[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, increase by 2 levels." The application notes explain that a position of trust is:

characterized by 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 ordinary bank teller or hotel clerk because such positions are not characterized by the above-described factors.

U.S.S.G. § 3B1.3, comment n.1 (emphasis added). The application notes further provide that due to the special nature of the United States mail, any postal worker who engages in the destruction or theft of the mail will be deemed to be in a position of trust. This rather extensive discussion of the application of this guideline was added by amendment in 1993.

Our Circuit has not specifically considered whether a postal window clerk should be assessed the two-point enhancement for position of trust. We have decided two cases with respect to other types of employment which are illustrative. In United States v. Ragland, 72 F.3d 500 (6th Cir. 1996), we examined Sentencing Guideline § 3B1.3 and the application notes to determine whether a bank customer service representative occupied a "position of trust." In making that determination, the panel held that "[t]he element of professional or managerial discretion is said to be the key." See id. at 502. The panel found that the bank customer service representative did not occupy a position of trust because she executed her embezzlement scheme in the same simple way that a bank teller would have embezzled the money, and it noted that she was not authorized to exercise any "meaningful discretion" in her position given that her job duties differed from those of a bank teller only in that she could open accounts for customers and prepare certificates of deposit, which required the signature of a supervisor. See id. at 501, 503.

In a previous case addressing § 3B1.3, a panel of this court noted in dicta that it would have found an insurance company employee ("cashier"), who drafted checks to be mailed to creditors and reconciled the bank statements after the canceled checks were returned, to be in a position of trust. See United States v. Allison, 59 F.3d 43 (6th Cir. 1995). She accomplished her scheme by altering the names on the checks after they had been signed using the correction device on a manual typewriter, thereby avoiding...