RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0082P (6th Cir.)
File Name: 00a0082p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 99-5116
v.
>
MICHAEL LYNN TRIBBLE,
Defendant-Appellant.
1
Appeal from the United States District Court
for the Eastern District of Tennessee at Greeneville.
No. 98-00019—Thomas G. Hull, District Judge.
Submitted: February 3, 2000
Decided and Filed: March 8, 2000
Before: MERRITT and MOORE, Circuit Judges;
HEYBURN, District Judge.*
*
The Honorable John G. Heyburn II, United States District Judge for
the Western District of Kentucky, sitting by designation.
1
2 United States v. Tribble No. 99-5116
_________________
COUNSEL
ON BRIEF: David L. Leonard, LEONARD & KERSHAW,
Greeneville, Tennessee, for Appellant. Neil Smith, UNITED
STATES ATTORNEY, Greeneville, Tennessee, for Appellee.
_________________
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
6 United States v. Tribble No. 99-5116 No. 99-5116 United States v. Tribble 3
In the case before us, three factors support the computer. He later voided the transactions and retained the
government’s contention that postal window clerks (as cash. Postal window clerks are audited only infrequently, but
opposed to postal employees in general) occupy a position of they are required to submit a daily financial report. The
trust. Postal window clerks have access to the IRT computer report is a printout of the transactions conducted using the
system, they are issued a store of money orders, and they are IRT. Because he voided the transactions, they did not appear
audited only infrequently. As outlined in the “Agreed Factual as cash received in his reports. Tribble was then able to issue
Basis” (Joint Appendix 37), Tribble’s embezzlement scheme money orders to himself from the excess cash in his
could not have been accomplished without access to the IRT possession, thus avoiding the problem of attempting to cash
computer system. While it appears that Tribble could not the checks.
have accomplished the scheme if he had been audited on a
more frequent basis, the actual content of the daily financial Under United States Sentencing Guideline § 3B1.3, “[i]f
reports he was required to submit and the rigorousness of his the defendant abused a position of public or private trust, or
supervision on a daily basis was not fully ascertainable from used a special skill, in a manner that significantly facilitated
the record. Therefore, Tribble’s actions could be construed to the commission or concealment of the offense, increase by 2
fall within the language of the application note implicating levels.” The application notes explain that a position of trust
positions which make the commission or the concealment of is:
the offense easier. As we previously noted, however, that is
not the decisive issue. characterized by managerial discretion (i.e. substantial
discretionary judgment that is ordinarily given
We do not believe that this system of embezzlement is any considerable deference). Persons holding such positions
more advanced than one that would have been employed by ordinarily are subject to significantly less supervision
a typical bank teller with access to a bank’s computer system, than employees whose responsibilities are primarily non-
nor does the position require more trust than that reposed in discretionary in nature. For this enhancement to apply,
a bank teller or hotel clerk. A postal window clerk fills a the position of trust must have contributed in some
clerical position, one which does not require the type of trust significant way to facilitating the commission or
in the discretion of a fiduciary or manager as the application concealment of the offense (e.g., by making the detection
notes indicate is required under § 3B1.3. As this Court has of the offense or the defendant’s responsibility for the
previously noted, just because we trust a person to handle offense more difficult). This adjustment, for example,
another’s property in the course of their job does not mean would apply in the case of an embezzlement of a client’s
they occupy a “position of trust” for the purpose of § 3B1.3. funds by an attorney serving as a guardian, a bank
See Ragland, 72 F.3d at 502. Even though Tribble’s position executive’s fraudulent loan scheme, or the criminal
significantly aided him in the commission and concealment of sexual abuse of a patient by a physician under the guise
his offense, we do not believe that fact overrides the of an examination. This adjustment would not apply in
inherently clerical nature of his position. the case of an ordinary bank teller or hotel clerk because
such positions are not characterized by the above-
For the reasons outlined above, we REVERSE the decision described factors.
of the District Court enhancing Tribble’s sentence by two
points for his abuse of a position of trust under § 3B1.3 of the U.S.S.G. § 3B1.3, comment n.1 (emphasis added). The
Sentencing Guidelines. application notes further provide that due to the special nature
of the United States mail, any postal worker who engages in
4 United States v. Tribble No. 99-5116 No. 99-5116 United States v. Tribble 5
the destruction or theft of the mail will be deemed to be in a While this panel seemed to rely more on her lack of
position of trust. This rather extensive discussion of the supervision than on the level of discretion that a “cashier”
application of this guideline was added by amendment in would have, the panel only reached this issue in dicta,
1993. deciding the case on other grounds.
Our Circuit has not specifically considered whether a postal The government brings to our attention the several cases
window clerk should be assessed the two-point enhancement from other Circuits which have held that postal window
for position of trust. We have decided two cases with respect clerks occupy a position of trust. See, e.g., United States v.
to other types of employment which are illustrative. In United Carroll, 129 F.3d 117, 1997 WL 693587 (4th Cir. 1997)
States v. Ragland, 72 F.3d 500 (6th Cir. 1996), we examined (holding that a postal window clerk occupies a position of
Sentencing Guideline § 3B1.3 and the application notes to trust); United States v. Bottroff, 124 F.3d 213, 1997 WL
determine whether a bank customer service representative 577260 (9th Cir. 1997) (same); United States v. Milligan, 958
occupied a “position of trust.” In making that determination, F.2d 345 (11th Cir. 1992) (same); see also United States v.
the panel held that “[t]he element of professional or Melendez, 41 F.3d 797 (2d Cir. 1994) (citing Milligan as
managerial discretion is said to be the key.” See id. at 502. supporting the holding that a postal worker who was one of a
The panel found that the bank customer service representative small group of postal workers who had access to the
did not occupy a position of trust because she executed her registered mail room key and who therefore had access to
embezzlement scheme in the same simple way that a bank large sums of money without the “tight accounting controls
teller would have embezzled the money, and it noted that she that restrict a bank teller” occupied a position of trust). The
was not authorized to exercise any “meaningful discretion” in cases repeatedly emphasize that the daily audits of the typical
her position given that her job duties differed from those of a bank teller differ greatly from the audits performed only every
bank teller only in that she could open accounts for customers few months on postal window clerks. In addition, the cases
and prepare certificates of deposit, which required the note that access to the IRT computer system and to stamps
signature of a supervisor. See id. at 501, 503. and money orders helped elevate the position to one of trust.
In a previous case addressing § 3B1.3, a panel of this court We are not persuaded by the reasoning of those cases.
noted in dicta that it would have found an insurance company According to our own precedent, and to the application notes
employee (“cashier”), who drafted checks to be mailed to in the Sentencing Guidelines themselves, the level of
creditors and reconciled the bank statements after the discretion accorded an employee is to be the decisive factor
canceled checks were returned, to be in a position of trust. in determining whether his position was one that can be
See United States v. Allison, 59 F.3d 43 (6th Cir. 1995). She characterized as a trust position. The cited cases have too
accomplished her scheme by altering the names on the checks often emphasized, we believe erroneously, the supervision an
after they had been signed using the correction device on a employee receives. The examples given in the application
manual typewriter, thereby avoiding detection. Once the notes (physician, attorney, and fiduciary) imply that the
checks were returned with the bank statements, she simply inherent nature of the work itself should naturally convey a
removed her name and added the proper creditor’s name back substantial degree of discretion to the defendant concerning
again. The panel emphasized the fact that the employee was how to properly administer the property of another or
the last to handle the checks before they left and the first to otherwise act in their best interest.
see them once they returned, noting that no one else could
have accomplished this particular scheme. See id. at 46.