United States Court of Appeals
For the First Circuit
No. 01-1584
UNITED STATES OF AMERICA,
Appellee,
v.
SOUPHAPHONE CHANTHASENG,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, Senior U.S. District Judge]
Before
Selya and Lipez, Circuit Judges
and Singal,* District Judge.
Leo T. Sorokin, Federal Defender Office, for appellant.
Paul Levenson, Assistant United States Attorney, with whom
James B. Farmer, United States Attorney, was on brief, for the
United States.
December 19, 2001
*
Of the District of Maine, sitting by designation.
SINGAL, District Judge. Souphaphone Chanthaseng
pleaded guilty to three counts of making false bank statements
in violation of 18 U.S.C. § 1005. At sentencing, the district
court adjusted her offense level upwards for abuse of a position
of trust, pursuant to section 3B1.3 of the United States
Sentencing Guidelines. Ms. Chanthaseng now appeals, challenging
the district court’s decision to apply the enhancement. We
affirm.
I. BACKGROUND
Between May 1999 and June 2000, Souphaphone Chanthaseng
stole nearly one million dollars from Fleet Bank. The
particulars of her scheme being essential to our inquiry, we
recount them here in detail.1
Fleet Bank hired Ms. Chanthaseng as a bank teller in 1994,
and promoted her in succession to the positions of head teller,
vault teller and branch operations supervisor. By the spring of
1999, she held the latter two positions simultaneously while
working at a Fleet branch in Waltham, Massachusetts. Ms.
1
We draw the facts in this case from the sentencing
transcript, presentence report and materials used by the
district court. See, e.g., United States v. Gill, 99 F.3d
484, 485 (1st Cir. 1996) (citing United States v. Egemonye, 62
F.3d 425, 426 (1st Cir. 1995)). In particular, we adopt most
of the relevant facts from an investigatory report conducted
by Fleet Bank and submitted as an addendum to appellee’s
sentencing memorandum.
- 2 -
Chanthaseng’s titles made her a mid-level employee. Her duties
gave her access to the bank’s computerized accounting system and
vault, and she supervised junior bank tellers. However, Fleet’s
internal regulations
required the branch manager to review and audit much of her
work.
Some of Ms. Chanthaseng’s job duties that were subject to
supervisory review involved the method by which the bank
accounted for cash deposits from its commercial customers.
These customers often brought bags of cash to the bank labeled
with a “rapid deposit ticket” denoting the amount of cash to be
deposited. Rather than confirming the bag’s contents on site,
the bank immediately credited the customer’s account with the
amount shown on the ticket, and sent the bag to an outside
vendor for counting. While the cash was in transit, the rapid
deposit ticket served as a placeholder for the actual funds on
the bank’s ledger. When the vendor returned the counted funds
to the bank, the ticket was cancelled out of the accounting
system and replaced with a corresponding entry for cash in the
vault.
Fleet’s regulations required its employees to take numerous
security measures in conjunction with rapid deposit ticket
transactions. First, although any teller at the bank could
accept rapid deposit tickets from customers, a senior teller had
- 3 -
to countersign every deposit. Second, no senior teller was
authorized to countersign a rapid deposit ticket that he or she
personally had accepted from a customer. Third, the bank
regularly generated reports of rapid deposit transactions that
the branch manager was to review, and finally, if rapid deposit
tickets remained outstanding on the bank’s ledger for more than
thirty days, Fleet’s “Central Operations Center” would red-flag
them for investigation.
As vault teller and branch operations supervisor, Ms.
Chanthaseng was one of the few employees at her branch
authorized to countersign other tellers’ rapid deposit tickets.
As noted, however, internal bank regulations forbade her from
countersigning her own tickets. Nonetheless, Ms. Chanthaseng’s
branch manager permitted her to do so, in violation of the
regulations.
Therein lay the key to her crime. Ms. Chanthaseng
successfully hoodwinked her employer by processing rapid deposit
tickets reflecting deposits that were never actually made to the
bank, and countersigning them. The phony deposits appeared on
the ledger to be cash in transit, immediately available for
withdrawal. Thus, Ms. Chanthaseng single-handedly created in
the accounting system a nonexistent cache of in-transit funds
that she could deposit into accounts she controlled. She would
subsequently cancel out the false tickets she had written, and
- 4 -
replace them with new tickets for equal or larger amounts, thus
concealing her crime by constantly carrying in-transit balances
on the ledger. A physical count of the cash in the vault,
however, would have revealed a significant cash shortfall.
A physical count of the vault cash did in fact occur when
bank security employees performed a surprise audit of the branch
in April 2000. Taken off guard, Ms. Chanthaseng feigned
inability to open the vault, buying her enough time to enter a
large balancing entry in the accounting system. When an employee
of the safe company finally opened the vault, the correct amount
of cash appeared to be there.
The balancing transaction did not go unnoticed, however.
Fleet’s Central Operations Center contacted the branch manager
about it, and he in turn referred the inquiry about the
anomalous entry to Ms. Chanthaseng. By recording several
additional entries in the system, she was able to conceal her
crime. The branch manager did not pursue the issue further.
In all, Ms. Chanthaseng’s scheme racked up gains of nearly
one million dollars in just under a year. Then, in May 2000,
Fleet sold its Waltham branch to Sovereign Bank. As a result of
the sale, Ms. Chanthaseng lost access to the bank’s accounting
system while three rapid deposit tickets were still outstanding.
When the tickets were not cancelled out of the system after
thirty days, Fleet immediately began an investigation. In short
- 5 -
order, bank investigators traced the transactions to Ms.
Chanthaseng, and she admitted to her wrongdoing.
Several months later, Ms. Chanthaseng pleaded guilty to
three counts of making false bank statements in violation of 18
U.S.C. § 1005. At sentencing, the district court ratcheted up
her offense level by two levels for abuse of a position of
trust, pursuant to section 3B1.3 of the United States Sentencing
Guidelines. The district court did not, however, explicitly
apply the appropriate legal standard to the facts in making the
enhancement. The propriety of this adjustment is now before us.
II. LEGAL DISCUSSION
Section 3B1.3 of the Sentencing Guidelines is familiar
ground for the court. We have previously ruled that section
3B1.3 permits a court to increase a defendant’s offense level by
two levels if the defendant (1) occupied a position of trust
vis-à-vis her employer; and (2) utilized this position of trust
to facilitate or conceal her offense. See, e.g., United States
v. Reccko, 151 F.3d 29, 31 (1 st Cir. 1998); United States v.
Gill, 99 F.3d 484, 489 (1st Cir. 1996). While we address a
district court’s interpretation of section 3B1.3 in this regard
de novo, we review its application of the Guideline to the facts
only for clear error. See United States v. Sotomayor-Vazquez,
249 F.3d 1, 19 (1st Cir. 2001). In a case such as this one, in
- 6 -
which the district court announced its decision to adjust upward
without subsidiary findings of fact, we “review the evidence and
the result, and not the reasoning by which the result was
reached by the district court.” United States v. Tracy, 36 F.3d
199, 203 (1st Cir. 1994). We therefore review the evidence to
determine if it satisfies the elements of a section 3B1.3
adjustment.
A. Position of Trust
Appellant first argues that her job did not have the
hallmarks of a position of trust. Our opinions in Reccko and
United States v. O’Connell, 252 F.3d 524 (1st Cir. 2001), have
made clear that a “position of trust,” for the purposes of
section 3B1.3, is “characterized by professional or managerial
discretion.” Id. at 528; Reccko, 151 F.3d at 31 (quoting USSG
§ 3B1.3). This requirement is paramount. Although intuition
may suggest that a wide variety of vocations should be thought
of as positions of trust, only those endowed with “substantial
discretionary judgment that is ordinarily given considerable
deference” are subject to the enhancement. USSG § 3B1.3 cmt. 1.
Compare Reccko, 151 F.3d at 31 (receptionist/ switchboard
operator at police station did not occupy a position of trust,
even though job allowed her to warn criminals about police
activity) with Sotomayor-Vazquez, 249 F.3d at 19-20 (consultant
- 7 -
occupied position of trust where he controlled the finances of
health services organization and was the “heart and soul” of the
operation).
Appellant does not offer an alternate interpretation of
section 3B1.3. Rather, she insists that the district court
committed clear error in finding that she possessed substantial
professional or managerial discretion. We cannot agree.
Several pieces of evidence suggest that appellant possessed
substantial discretionary judgment. To begin with, she had the
authority to countersign rapid deposit tickets. Only a few
personnel within the bank were given this power, and exercising
it affected the bank’s financial well-being by making funds
credited to accounts via the rapid deposit ticket process
available for immediate withdrawal. Cf. USSG § 3B1.3 cmt. n. 1
(bank executive’s fraudulent loan scheme worthy of abuse of
position of trust adjustment).
Moreover, in appellant’s case it is apparent that her branch
manager consistently failed to review her rapid deposit ticket
approvals, essentially making her the branch’s sole decision-
maker for those transactions and allowing her to freely
countersign her own tickets. Appellant believes this fact works
in her favor, because her actions were contrary to bank policy.
We disagree. This court has held that the relevant inquiry in
cases such as this one is whether a person in fact occupied a
- 8 -
position of trust, rather than whether the person’s title or
official job description contained a discretionary element. See
Gill, 99 F.3d at 489. Thus in Gill, we found that a defendant
who had posed as a practicing psychologist had abused a position
of trust in relation to his “patients,” even though he was not
legally licensed. Id. This case is no different. Although it
was against bank regulations for appellant to countersign rapid
deposit tickets at will, the bank manager’s laxity effectively
made that a central element of her position.
The branch manager added to the discretionary nature of
appellant’s job by referring the follow-up of an anomalous
balancing entry to her. We consider the task of investigating
and reporting on potentially fraudulent transactions a
discretionary job function. At oral argument, appellant
suggested that “referred” mischaracterizes the nature of the
branch manager’s inquiry into the balancing entry. She insists
instead that the manager merely queried her about the entry, and
failed to follow up on her response. The record plainly states,
however, that the branch manger “referred” the matter to Ms.
Chanthaseng. Appellant did not object to this characterization
in the proceedings below, and we decline to indulge her
alternate explanation at this stage. See United States v.
Approximately Two Thousand, Five Hundred Thirty-Eight Point
Eighty-Five Shares etc., 988 F.2d 1281, 1288 n. 9 (1st Cir.
- 9 -
1993) (counsel’s representation of fact on appeal not a
substitute for record showing).
B. Use of Discretion to Facilitate or Conceal Crime
Proceeding to the second prong of the analysis, we must
decide whether appellant’s substantial discretionary judgment
facilitated or concealed her crime. There can be no doubt that
it did. Because the bank manager allowed appellant to have the
last word on rapid deposit ticket transactions, she was able to
approve her own falsified tickets free from the danger of
oversight. This freedom clearly facilitated her crime. By the
same token, when the branch manager referred investigation of
the anomalous balancing entry to appellant, appellant enjoyed
the freedom to conceal her misdeeds by recording several more
entries without fear of oversight. The evidence very clearly
supports the second element of our section 3B1.3 analysis.
III. CONCLUSION
While we are cognizant that the district court did not
explicitly engage in the thorough, two-step analysis that this
case merited, it reached the correct result. There is
sufficient evidence in the record to defeat the argument that
the district court’s application of the section 3B1.3
enhancement was clear error. For that reason, we affirm.
- 10 -
Affirmed.
- 11 -