UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4546
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KATHLEEN CULBRETH,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:09-cr-00645-PJM-1)
Submitted: May 31, 2011 Decided: June 14, 2011
Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Ebise Bayisa, Staff
Attorney, Greenbelt, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Jonathan Biran, Assistant
United States Attorney, Kiran Patel, Special Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kathleen Culbreth pled guilty to bank fraud, 18 U.S.C.
§ 1344 (2006) (Count One), and credit card fraud, 18 U.S.C.
§ 1029(a)(2) (2006) (Count Two), and received a sentence of
forty-one months’ imprisonment. Culbreth appeals her sentence,
arguing that the district court erred in finding that she abused
a position of trust, U.S. Sentencing Guidelines Manual § 3B1.3
(2009). We affirm.
Culbreth was hired as office manager for Cardinal
Scientific, Incorporated, by Andrew Brosky, who had started the
company. She worked there for three years. Her duties included
bookkeeping, preparing bills and invoices, answering the
telephone, and getting the mail. Only Brosky had the authority
to sign checks; however, Culbreth opened invoices from suppliers
as they arrived, logged them into Cardinal’s electronic
accounting system, and printed checks. The checks were kept in
a file cabinet in Brosky’s office, but Culbreth had authority to
go into his office and take checks from the file cabinet as
needed. She was the only employee so authorized, apart from
Brosky. Culbreth was also the only employee besides Brosky who
could access the company’s bank accounts and lines of credit
electronically with its user name and password.
Once or twice a month, Culbreth gave Brosky a folder
of invoices and checks; he reviewed them and signed the checks
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if they appeared to be in order. Culbreth was also responsible
for following up with customers who had not paid Cardinal on
time, and making arrangements for them to pay in installments,
if necessary.
Within a month of being hired, Culbreth began printing
checks made payable to herself and forging Brosky’s signature.
Thereafter, until her fraud was discovered, Culbreth created at
least one check made payable to herself every month but one.
Culbreth covered up her activity by using her access to
Cardinal’s electronic banking system to move money among
Cardinal’s three lines of credit and its business checking
account. She changed the entries in Cardinal’s general ledger
so that, for amounts actually paid to her, the payee listed in
the general ledger was one of Cardinal’s creditors. Culbreth
also committed credit card fraud against Cardinal by contacting
the issuers of Cardinal’s Bank of America and BJ’s credit cards,
without authorization, and requesting that she be added as an
authorized user on each card.
Culbreth’s criminal activity went undiscovered for
three years. Brosky eventually suspected a problem with
Culbreth’s bookkeeping. However, he did not suspect that she
was stealing, and when he asked his accountants to investigate
in August 2006, they did not discover the fraud for several
months. Only when Brosky noticed a July payment to a vendor who
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he remembered had been paid in full in March did Culbreth admit
that she had done more than make mistakes. Thereafter, Brosky
learned that Cardinal’s two $100,000 lines of credit, one of
which had been opened in anticipation of the company’s move to a
new building, were both exhausted. The money had been moved
into Cardinal’s checking account, and Culbreth had used it to
gamble.
At sentencing, the district court observed that the
adjustment applied if Culbreth occupied a position of private
trust, i.e., “one characterized by managerial discretion,
substantial discretionary judgment, which is ordinarily given
deference because persons holding those positions ordinarily are
subject to significantly less supervision than employees whose
responsibilities are primarily non-discretionary in nature.”
See USSG § 3B1.3 & cmt. n.1. The court found that Culbreth had
the responsibility for receiving bills and preparing checks for
her boss’s signature and that her duties enabled her to make
payments to herself. The court found that Culbreth had access
to the lines of credit, which allowed her to make it appear that
revenues were “flowing in the ordinary course[,]” and that she
was the only employee besides Brosky who had the user name and
password and could make transfers, which allowed her to “make
the operating account look bulkier than in fact it was.” The
court found that Culbreth was able to transfer funds to the
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operating account and siphon money out for her own use,
undetected, for three-and-a-half years. The court found that
the abuse of a position of trust adjustment was appropriate.
The district court’s decision that a defendant had a
position of trust is a factual determination reviewed for clear
error. United States v. Bollin, 264 F.3d 391, 415 (4th Cir.
2001). The question must be examined from the perspective of
the victim. United States v. Abdelshafi, 592 F.3d 602, 611 (4th
Cir.), cert. denied, 131 S. Ct. 182 (2010). The three factors
this court weighs to determine whether the adjustment applies
are: “(1) whether the defendant had special duties or special
access to information not available to other employees, (2) the
extent of the discretion the defendant possessed, and (3)
whether the defendant’s actions indicate that he is more
culpable than others in similar positions who engage in criminal
acts.” Id. at 611 (citing United States v. Akinkoye, 185 F.3d
192, 203 (4th Cir. 1999)).
Culbreth asserts that she had a low-level, clerical
position, lacked check-writing authority, did not supervise
other employees, and had little discretion in her duties. She
notes that the mere fact that Brosky trusted her is not
sufficient because trust on the part of the victim is always
present in a fraud case, United States v. Ebersole, 411 F.3d
517, 536 (4th Cir. 2005), whereas the term “position of public
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or private trust” in § 3B1.3 “is a term of art, appropriating
some of the aspects of the legal concept of a trustee or
fiduciary.” Id. (internal quotation marks and citation
omitted). Culbreth asserts that her job involved no more than
paying the bills as they arrived and that her fraudulent conduct
could have been discovered easily by Brosky through a review of
the company’s bank statements.
We note first that Culbreth had access to information
that no other regular employee had, i.e., the user name and
password which allowed her to access Cardinal’s electronic
banking and to make transfers among the company’s checking
account and lines of credit without supervision, as well as
unquestioned access to the company’s checkbook which Brosky kept
in his office. Culbreth correctly argues that “lax supervision
alone does not convert one’s job into a ‘position of trust’
under § 3B1.3.” United States v. Helton, 953 F.3d 867, 870 (4th
Cir. 1992). However, Culbreth’s claim that Brosky could have
easily discovered her thefts through a quick review of the bank
statements is not supported by the record. In fact, his
accountants could not discover the fraud for months. Thus, the
first factor weighs in favor of Culbreth having occupied and
abused a position of trust.
It is true that Culbreth did not have much discretion
in her normal duties, and the discretion she did have — to
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negotiate a structured payment for a customer who could not pay
his bill in full — does not seem to have helped her commit or
conceal her theft.
The last factor, Culbreth’s culpability relative to
others in a similar position who commit crimes, focuses on the
nature and extent of her crime. Akinkoye, 185 F.3d at 204.
Culbreth stole from Cardinal on a regular basis over a period of
three years and the loss to the company totaled over $200,000.
This factor weighs in favor of the district court’s finding that
Culbreth abused a position of trust. On balance, we conclude
that the district court did not clearly err in so finding and in
making the adjustment under § 3B1.3.
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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