IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 6, 2009
No. 07-11029 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARSHA AUGUST OLLISON
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before WIENER, GARZA, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Defendant-Appellant Marsha August Ollison was charged by indictment
with three counts of theft from an organization receiving federal funds, in
violation of 18 U.S.C. § 666(a)(1)(A). A jury found Ollison guilty of all three
counts, and the district court sentenced her to an eighteen-month term of
imprisonment and a three-year term of supervised release. Ollison was also
ordered to pay restitution in the amount of $64,633.
Dallas Independent School District (DISD) receives more than $10,000 in
each fiscal year from the federal government in the form of educational or block
grants. As an employee of DISD, Ollison was given a credit card, known as a
procurement card (P-Card), in order to make official purchases on behalf of
No. 07-11029
DISD. The jury found that Ollison used her P-Card to make unauthorized
personal purchases exceeding $5,000 in each of the three fiscal years alleged in
the indictment. For sentencing and restitution purposes, the district court found
that Ollison used her P-Card to make personal purchases totaling approximately
$64,633 during the relevant time period.
Ollison raises six issues challenging her conviction and sentence. Ollison
argues that: (1) there is not legally sufficient evidence that she defrauded DISD
of at least $5,000 in each fiscal year alleged in the indictment; (2) the district
court erred in refusing to dismiss the indictment because it is unconstitutional
to apply § 666 to low-level employees like herself; (3) the district court abused
its discretion in allowing Special Agent Steven Sepeda to testify as a summary
witness and to express his lay opinion regarding whether certain purchases were
official or personal; (4) the district court improperly instructed the jury that
Jimmy Talley, a defense witness, was not testifying as an expert; (5) the district
court clearly erred in determining the loss amount for sentencing purposes and
plainly erred in calculating the restitution amount; and (6) the district court
clearly erred when it found that Ollison was subject to a two-level sentencing
enhancement for abuse of a position of trust.
For the reasons explained below, we affirm the conviction but reverse the
sentence and remand with instructions not to apply the enhancement for abuse
of a position of trust.
I. FACTUAL & PROCEDURAL BACKGROUND
Ollison worked for DISD as a secretary in the office of the Superintendent.
DISD received significantly more than $10,000 in each fiscal year from the
federal government in the form of educational or block grants. The federal funds
were used to pay the day-to-day expenses of DISD, including salaries, operating
expenses, transportation, books, supplies, and equipment.
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No. 07-11029
The P-Card program began in the late 1990s and ended in July 2006.
Approximately 1,200 employees of DISD received P-Cards, which were only
intended for official DISD purchases. Ollison signed a written agreement that
the P-Card would not be used for personal purchases. This agreement stated the
following: “I understand that under no circumstances will I use the procurement
card to make personal purchases, either for others or myself.” P-Card holders
were required to maintain the original receipts for all purchases, which DISD
could audit at unspecified times. When P-Card holders received a statement,
they forwarded it to the DISD finance department, which directly paid the bill
with DISD funds.
During the fiscal year ending June 30, 2004, Ollison’s P-Card was used to
make $14,093 in purchases. During the fiscal year ending June 30, 2005, it was
used to make $52,007 in purchases, and during the fiscal year ending June 30,
2006, it was used to make $26,641 in purchases. The total amount charged on
her P-Card during the three-year period was $92,742. Ollison was required to
immediately reimburse DISD for any unauthorized personal purchases made
with her P-Card, but she never reimbursed DISD for any of her purchases.
The Superintendent terminated the P-Card program in July 2006 after the
Dallas Morning News ran a story detailing abuses in the P-Card program. This
article revealed that numerous DISD employees used their P-Cards to make
personal purchases. The Superintendent sent letters to all P-Card holders
requesting that all receipts and records for 2004 though 2006 be submitted to the
DISD legal office. Subsequently, the Superintendent expanded this disclosure
request to include receipts and records for 2003 to 2004.
Special Agent Steven Sepeda of the FBI investigated whether Ollison
violated federal law through her misuse of the P-Card. Sepeda testified at trial
that he had an M.S. degree in accounting from the University of North Texas,
and that he is a CPA. He worked in the financial departments of several private
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No. 07-11029
companies before joining the FBI approximately three years before trial, and he
received training in forensics, fraud and corporate fraud, and had taught college
accounting courses. Although Sepeda informed the jury of his professional
qualifications, which suggested that he was an expert witness, he actually
testified as a lay witness.
A comparison of the bank statements to the receipts revealed that, of a
total of 756 transactions, Ollison submitted only 360 receipts. Of the 360
receipts she submitted, some 91 had been altered. Some receipts had
information obscured with correction fluid or handwriting, some were cut to
remove information, and others were complete fabrications or did not add up to
the totals indicated. Sepeda testified that when he compared Ollison’s spending
patterns to other DISD employees with similar job positions, he did not identify
any other similarly situated employee with spending comparable to Ollison.
Many of the receipts that Ollison did submit were consistent with personal
use. These receipts included numerous clothing purchases from Dillard’s
department store, women’s clothing and accessories from Marshall’s and TJ
Maxx Stores, including several “layaway” accounts. The receipts also included
numerous grocery store and drug store purchases of items of a personal nature.
Many of these receipts indicated that the purchase occurred in the evening or
during the weekend.
On September 8, 2006, Sepeda and other investigators executed a search
warrant at Ollison’s residence. She was present and consented to speak with
investigators after being advised of her Miranda rights. She admitted to the
investigators that she had used her P-Card for personal purchases, explaining
that “it just got comfortable, it got easy.” She admitted that she used her P-Card
for “routine grocery shopping” and for buying clothes, household accessories, and
home internet service. She also acknowledged that she altered some receipts
submitted to DISD. Ollison identified items in her residence that she had
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No. 07-11029
purchased with her P-Card. The investigators seized the items identified by
Ollison and other items listed in the search warrant, including a DVD player,
clothing items, fifty-six vases, and several framed prints.
Through interviews with Ollison’s supervisors, Sepeda determined that
Ollison was responsible for buying snacks for the office, such as candy, soda and
coffee. She was also charged with purchasing condiments and flatware,
arranging for catering through approved vendors, and providing for receptions.
At trial, Sepeda categorized Ollison’s individual charges on her P-Card
into one of three categories: personal expense, DISD expense, or undetermined
expense. He considered a variety of factors in reaching his conclusions: (1) the
identity of the vendor; (2) the location of the vendor; (3) whether DISD had an
approved vendor for the item purchased; (4) the day and time of purchase; (5)
whether the receipt had been altered or fabricated; (6) whether a receipt had, in
fact, been submitted by Ollison; (7) whether there were additional items on the
same receipt; (8) whether there was a pattern of purchases; (9) whether sales tax
was paid or a tax-exempt certificate was used for the purchase; and (10) Ollison’s
admissions to investigators. Sepeda testified that he considered all these factors
when evaluating each individual charge, and that none of them were dispositive
in making his conclusions.
Based on his review, Sepeda determined that (1) during the fiscal year
ending June 30, 2004, Ollison’s P-Card was used to make $12,436 in personal
purchases; (2) during fiscal year ending June 30, 2005, it was used to make
$28,373 in personal purchases; and (3) during fiscal year ending June 30, 2006,
it was used to make $15,480 in personal purchases.
The defense presented Dr. Al Sullivan, a retired school administrator who
worked at DISD from 1970 to 2005. He testified that he was experienced in
conducting educational audits to ensure that the school district money was being
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No. 07-11029
spent properly. Sullivan identified various items that could have been
legitimately purchased by Ollison for official DISD purposes.
The defense also presented Jimmy Talley, CPA, who testified that he had
reviewed the Government’s exhibits and Ollison’s receipts. Talley stated that
it was impossible to determine if a purchase was personal based on the receipts
alone. Talley stated that in order to determine whether a purchase was official
or personal, the following steps would need to be taken: (1) call the vendor; (2)
send a confirmation to the vendor; (3) interview additional DISD employees; (4)
study internal controls of DISD; (5) determine the accuracy of the receipt; and
(6) determine what happened to the item. Talley testified that without following
these six steps, any classification of a purchase as official or personal would be
speculative.
II. ANALYSIS
A. Sufficiency of the Evidence
1. Standard of Review
Because Ollison moved for a judgment of acquittal prior to the submission
of the case to the jury, her sufficiency claim is reviewed de novo. United States
v. Alarcon, 261 F.3d 416, 421 (5th Cir. 2001). In assessing a challenge to the
sufficiency of the evidence, we must determine whether, “viewing all the
evidence in the light most favorable to the verdict,” a rational jury “could have
found that the evidence established the elements of the offense beyond a
reasonable doubt.” United States v. Villarreal, 324 F.3d 319, 322 (5th Cir. 2003).
“All reasonable inferences must be drawn, and all credibility determinations
made, in the light most favorable to the verdict.” Id. If, however, “the evidence
viewed in the light most favorable to the prosecution gives equal or nearly equal
circumstantial support to a theory of guilt and a theory of innocence, the
conviction should be reversed.” United States v. Mackay, 33 F.3d 489, 493 (5th
Cir. 1994) (citation omitted).
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No. 07-11029
2. Merits
Section 666 “prohibits theft or bribery concerning programs receiving
federal funds.”1 United States v. Westmoreland, 841 F.2d 572, 574 (5th Cir.
1988). “The Supreme Court has described the coverage of § 666 as ‘expansive,
both as to the [conduct] forbidden and the entities covered.’” United States v.
Hildenbrand, 527 F.3d 466, 477-78 (5th Cir. 2008) (quoting Fischer v. United
States, 529 U.S. 667, 678 (2000)). The legislative history indicates that § 666
was designed “to protect the integrity of federal funds by punishing theft and
1
In relevant part, 18 U.S.C. § 666 states:
(a) Whoever, if the circumstance described in subsection (b) of this section
exists—
(1) being an agent of an organization, or of a State, local, or Indian tribal
government, or any agency thereof—
(A) embezzles, steals, obtains by fraud, or otherwise without authority
knowingly converts to the use of any person other than the rightful owner or
intentionally misapplies, property that—
(i) is valued at $5,000 or more, and
(ii) is owned by, or is under the care, custody, or control of such
organization, government, or agency; . . .
....
shall be fined under this title, imprisoned not more than 10 years, or both.
(b) The circumstance referred to in subsection (a) of this section is that the
organization, government, or agency receives, in any one year period, benefits
in excess of $10,000 under a Federal program involving a grant, contract,
subsidy, loan, guarantee, insurance, or other form of Federal assistance . . . .
....
(d) As used in this section—
(1) the term “agent” means a person authorized to act on behalf of another
person or a government and, in the case of an organization or government,
includes a servant or employee, and a partner, director, officer, manager, and
representative;
....
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No. 07-11029
bribery involving Federal programs for which there is a specific statutory
scheme authorizing the Federal assistance in order to promote or achieve certain
policy objectives.”2 United States v. Marmolejo, 89 F.3d 1185, 1190 (5th Cir.
1996) (quotation omitted).
Although the district court found that Ollison made $64,633 in personal
purchases on her P-Card for sentencing and restitution purposes, the jury
instructions made clear that the jury could convict if “the value of the property
stolen, embezzled, knowingly converted, or intentionally misapplied was at least
$5,000 in any one-year period as set forth in the Indictment.”
Because Ollison admitted to using the P-Card for “routine grocery
shopping,” clothing, and home accessory purchases, it was reasonable for the
jury to infer that all purchases falling within those general categories were
personal because that inference was bolstered by the other factors identified by
Sepeda and was not rebutted by evidence to the contrary. During the fiscal year
ending on June 30, 2004, Ollison made grocery purchases and clothing purchases
that exceeded the $5,000 threshold.3 The same is true for the fiscal year ending
on June 30, 2005,4 and for the fiscal year ending on June 30, 2006.5 Given
Ollison’s admissions, Sepeda’s testimony, and the documentary evidence
2
In Westmoreland, which involved the bribery prong of the statute, we held that “the
direct involvement of federal funds in a transaction is not an essential element of bribery under
section 666(b); the [G]overnment need not prove that federal monies funded a corrupt
transaction.” 841 F.2d at 578. Rather, the Government need only prove that the agency
received federal funds during the relevant time period exceeding the statutory threshold, which
is $10,000. Id. at 576. In United States v. Lipscomb, we stated that § 666 is broadly focused
on deterring corruption in those agencies receiving substantial federal assistance, rather than
narrowly focused on deterring the direct depletion of federal funds through theft or graft. 299
F.3d 303, 309 (5th Cir. 2002). Thus, it was unnecessary for the Government to prove that
Ollison’s theft from DISD resulted in the direct depletion of federal funds.
3
Albertson’s, $2,029; Tom Thumb, $2,266; Marshall’s, $9,437.
4
Albertson’s, $5,863; TJ Maxx, $2,348.
5
Albertson’s, $3,370; Steinmart, $1,303; Target, $1,891.
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No. 07-11029
introduced at trial, the evidence certainly does not lend “equal or nearly equal
circumstantial support to a theory of guilt and a theory of innocence.” See
Mackay, 33 F.3d at 493.
Albeit de novo, sufficiency-of-the-evidence review is “highly deferential to
the verdict,” United States v. Harris, 293 F.3d 863, 869 (5th Cir. 2002), and does
not depend on whether the evidence presented at trial is direct or circumstantial.
United States v. Bryant, 770 F.2d 1283, 1288 (5th Cir. 1985). Furthermore, our
inquiry is “limited to whether the jury’s verdict was reasonable, not whether we
believe it to be correct.” United States v. Williams, 264 F.3d 561, 576 (5th Cir.
2001). Although Ollison’s witness, Sullivan, testified that various purchases
could have been official, the jury was entitled to discount or ignore that
testimony. See United States v. Fuchs, 467 F.3d 889, 904 (5th Cir. 2006). We
find that there was a legally sufficient evidentiary basis for the jury to conclude
that Ollison made personal purchases on her P-Card exceeding $5,000 in each
fiscal year alleged in the indictment. See Villarreal, 324 F.3d at 322.
B. As-Applied Constitutionality of 18 U.S.C. § 666
1. Standard of Review
The district court denied Ollison’s motion to dismiss the indictment, in
which she argued that § 666 is unconstitutional as applied to her. We review de
novo the denial of the motion to dismiss the indictment and the underlying
constitutional claim. See United States v. Kay, 513 F.3d 432, 440 (5th Cir. 2007);
Lipscomb, 299 F.3d at 318.
2. Merits
Because she was a secretary to the Superintendent, Ollison argues that
she is not the type of employee who is covered by § 666. Citing to Westmoreland
and Lipscomb, Ollison argues that § 666 is unconstitutional as applied to her
because she is a “low-level employee,” not an “administrator” who has authority
to “effect significant transactions.” See Sabri v. United States 541 U.S. 600, 608
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No. 07-11029
(2004) (stating that in passing § 666, “Congress was within its prerogative to
protect spending objects from the menace of local administrators on the take.”).
She argues that application of the theft prong of § 666 to her violates principles
of federalism and exceeds Congress’s authority under the Spending Clause, the
Necessary and Proper Clause, the Commerce Clause, and the Tenth
Amendment.
Ollison’s argument is in tension with the plain language of the statute,
which states that “the term ‘agent’ . . . in the case of an organization or
government, includes a servant or employee . . . .” See 18 U.S.C. § 666(d)(1)
(emphasis added). The statute itself does not distinguish between “high-level”
and “low-level” employees. Cf. Salinas v. United States, 522 U.S. 52, 57 (1997)
(“The statute’s plain language fails to provide any basis for limiting §
666(a)(1)(B) to bribes affecting federal funds.”). When construing § 666 in the
past, we have consistently applied the statute in accordance with its plain
language. See Westmoreland, 841 F.2d at 576. Furthermore, if we were inclined
to carve out an exception for “low-level employees,” it would create a circuit split.
See United States v. Sotomayor-Vazquez, 249 F.3d 1, 10 (1st Cir. 2001)
(“[Section] 666 has been given a wide scope, to include all employees ‘from the
lowest clerk to the highest administrator.’”) (quoting United States v. Brann, 990
F.2d 98, 101 (3d Cir. 1993)).
Despite being contrary to the plain language of the statute and persuasive
authority, Ollison’s argument is arguably supported by the following language
in Westmoreland:
[T]he statute does not encompass every local bribery as
Westmoreland suggests. Although the extent of the federal
government’s assistance programs will bring many organizations
and agencies within the statute’s scope, the statute limits its reach
to entities that receive a substantial amount of federal funds and to
agents who have the authority to effect significant transactions.
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No. 07-11029
Westmoreland, 841 F.2d at 578 (emphasis added); accord Lipscomb, 299 F.3d at
335-36. Furthermore, in Lipscomb, when evaluating a similar argument, we
identified the defendant’s “high rank and his broad influence over many
programs that receive federal funds” as a federal interest justifying application
of § 666 to his conduct. 299 F.3d at 336. 45
Ollison made a total of $92,742 in official and personal purchases over a
three-year period with her P-Card. Ollison used her P-Card to steal at least
$15,000 (according to the jury) and as much as $64,633 (according to the judge)
from DISD, which was the direct recipient of federal funds.6 Based on the
particular facts of this case, we find that Ollison’s conduct falls within the ambit
of § 666.
Section 666 is constitutional as applied to the facts of this case; the statute
does not exceed Congress’s authority under the Spending Clause, the Necessary
and Proper Clause, or the Tenth Amendment. See Lipscomb, 299 F.3d at 318-35.
Although there was a dissenting opinion in Lipscomb, the federal interest in
protecting the integrity of the DISD procurement system is more readily
apparent than the federal interest at stake in Lipscomb. Cf. id. at 369 (Smith,
J., dissenting). Because DISD used its sizable federal grants to fund day-to-day
expenses, it cannot be said that Ollison’s misuse of her P-Card “ha[s] no
relationship whatsoever to federal funds and programs.” Id. at 372.
Ollison’s conduct “is indeed reasonably related to a federal interest, and
thus is necessary and proper to Congress’s exercise of its spending power.” Id.
at 336 (italics omitted). The Tenth Amendment does not alter this conclusion.
Id. at 318. Because “Congress’ authority to enact § 666 rests on the Spending
6
Ollison cites to language suggesting that the term “agent” should be narrowly
construed based on “how organizationally removed the employee is from the particular agency
that administers the federal program.” See Lipscomb, 299 F.3d at 314 (citation omitted). In
this case, however, Ollison was not “organizationally removed” from DISD, which was the
direct recipient of federal funds.
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No. 07-11029
Clause of the Constitution,” Ollison’s Commerce Clause challenge to the statute
must also fail. United States v. Phillips, 219 F.3d 404, 414 (5th Cir. 2000).
C. Evidentiary Objections to Special Agent Sepeda’s Testimony
1. Standard of Review
“Admission of evidence, including summaries and summary testimony, is
reviewed for abuse of discretion.” United States v. Harms, 442 F.3d 367, 375
(5th Cir. 2006). Even if the district court errs in its evidentiary ruling, the error
can be excused if it was harmless. United States v. Hart, 295 F.3d 451, 454 (5th
Cir. 2002). “A nonconstitutional trial error is harmless unless it had substantial
and injurious effect or influence in determining the jury’s verdict.” Id. (internal
quotation marks omitted).
2. Merits
a. Demonstrative Exhibits
The district court not abuse its discretion in allowing the Government to
proffer demonstrative exhibits 65, 67, and 69. “[A]llowing the use of charts as
‘pedagogical’ devices intended to present the government’s version of the case is
within the bounds of the trial court’s discretion to control the presentation of
evidence under [Federal Rule of Evidence] 611(a).” Harms, 442 F.3d at 375
(quotation omitted and emphasis added). “[S]uch charts are not admitted into
evidence and should not go to the jury room absent consent of the parties.” Id.
(quotation omitted). “If a summary or chart is introduced solely as a pedagogical
device, the court should instruct the jury that the chart or summary is not to be
considered as evidence, but only as an aid in evaluating evidence.” Id. (citation
omitted).
Demonstrative exhibits 65, 67, and 69 accurately reflected Sepeda’s
opinion testimony regarding those purchases that he regarded as personal.
Summary charts premised on the Government’s assumptions are permissible as
long as supporting evidence has been presented to the jury, and the jury is
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No. 07-11029
instructed that it must determine what weight the evidence should be given.
United States v. Jennings, 724 F.2d 436, 442 (5th Cir. 1984). In this case,
demonstrative exhibits 65, 67, and 69 did not allow the Government “to assume
that which it was required to prove beyond a reasonable doubt as operative facts
of the alleged offense.” Cf. United States v. Taylor, 210 F.3d 311, 316 (5th Cir.
2000). Rather, Sepeda’s conclusions regarding whether a given purchase was
personal was based on his multi-factor test, Ollison’s admissions, his search of
Ollison’s residence, and his review of the receipts. Cf. Hart, 295 F.3d at 456
(holding that there was a “total absence of any independent testimony to support
[the witness’s] assumptions in preparing [the demonstrative exhibits]”).
Furthermore, the district court instructed the jury that “[e]xhibits 65, 67, and
69 were demonstrative aids only” and that “[t]he evidence relevant to
expenditures regarding the P-Card are Exhibits 8, 9, 10, and 11, which have
previously been admitted into evidence.”7
b. Summary Witness
Sepeda testified as a summary witness and referred to several
demonstrative exhibits during his testimony. “For complex cases, we have
allowed summary witnesses in a limited capacity.” United States v. Fullwood,
342 F.3d 409, 413 (5th Cir. 2003). After reviewing Sepeda’s testimony, we
conclude that the district court did not abuse its discretion in permitting
Sepeda’s summary testimony. The evidence presented was voluminous and
presented an appreciable degree of complexity. See Harms, 442 F.3d at 376.
Sepeda’s summary testimony was supported by the evidence, and we are not
persuaded that it implicates the concerns that we have previously expressed
about the improper use of summary testimony. See Fullwood, 342 F.3d at 413-
14.
7
The district court refused to admit demonstrative exhibits 65, 67, and 69 as
summaries under Federal Rule of Evidence 1006. See Harms, 442 F.3d at 375-76.
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No. 07-11029
c. Opinion Testimony
Sepeda gave opinion testimony as a lay witness under Federal Rule of
Evidence 701, not as an expert witness under Federal Rule of Evidence 702.
Rule 701 states:
If the witness is not testifying as an expert, the witness’ testimony
in the form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the
witness, (b) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue, and (c) not based
on scientific, technical, or other specialized knowledge within the
scope of Rule 702.
“[T]he distinction between lay and expert witness testimony is that lay
testimony results from a process of reasoning familiar in everyday life, while
expert testimony results from a process of reasoning which can be mastered only
by specialists in the field.” United States v. Yanez Sosa, 513 F.3d 194, 200 (5th
Cir. 2008) (internal quotations omitted).
The Government argues that Sepeda’s testimony regarding Ollison’s
admissions and his search of her residence was merely descriptive, and his
opinion testimony regarding whether the purchases were personal was based on
his common-sense application of various factors that any lay person would
consider relevant. We need not decide whether Sepeda’s testimony “exceeded
the bounds of permissible lay opinion testimony” because the error, if any, was
harmless. Id. at 200-01. Sepeda was qualified to testify as an expert, and the
district court did not abuse its discretion in determining that his opinion
testimony, whether lay or expert, would assist the jury in evaluating the
evidence.
D. District Court’s Instructions regarding Jimmy Talley
1. Standard of Review
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No. 07-11029
The district court’s decision on whether to admit expert opinion evidence
is reviewed for abuse of discretion. United States v. Norris, 217 F.3d 262, 268-69
(5th Cir. 2000).
2. Merits
During direct examination, Talley testified that Sepeda lacked sufficient
information to determine whether Ollison’s purchases were personal. Talley’s
opinion was based on four generally accepted accounting and auditing principles:
(1) checking for authenticity, (2) support, (3) accuracy, and (4) completeness.
Later on voir dire examination, Talley admitted that these four principles relate
to the verification of documents, not on how to conduct an investigation. The
Government objected to Talley providing expert testimony, arguing that Talley’s
expertise in accounting was not relevant to whether Sepeda’s investigation was
adequate. The district court sustained the objection and advised the jury as
follows:
Members of the jury, yesterday right before the break, the
government had made an objection to Mr. Talley’s testimony
concerning certain accounting principles. The court sustains the
government’s objection. Mr. Talley will be testifying, however, he
will not be testifying as an expert based upon the four accounting
principles that you heard testified about yesterday.
After instructing the jury, the district court allowed Talley’s lay opinion
testimony regarding the adequacy of Sepeda’s investigation, and the district
court allowed Talley to testify regarding his qualifications as a CPA.
Ollison argues that the district court’s instruction “degraded” Talley’s
testimony by stating that Talley was not an expert. She observes that the
district court did not give a similar instruction regarding Sepeda’s opinion
testimony.
Because the district court was ruling on the Government’s objection, we
find that the error, if any, was harmless. See United States v. Johnson, 488 F.3d
690, 697-98 (6th Cir. 2007) (“Except in ruling on an objection, the court should
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No. 07-11029
not, in the presence of the jury, declare that a witness is qualified as an expert
or to render an expert opinion, and counsel should not ask the court to do so.”)
(citation omitted). Talley testified that generally accepted accounting and
auditing principles are not directly relevant to critiquing an FBI investigation,
and the jury still heard his lay opinion regarding the adequacy of Sepeda’s
investigation. The district court’s instruction did not “degrade” Talley’s
testimony because both Talley and Sepeda testified as lay witnesses and gave
their respective opinions.
E. Loss Amount for Sentencing and Restitution Purposes
1. Standard of Review
Factual determinations regarding loss amount for guideline calculation
purposes are reviewed for clear error. United States v. Bieganowski, 313 F.3d
264, 294 (5th Cir. 2002). If a restitution award is legally permitted, it is
normally reviewed for abuse of discretion. Norris, 217 F.3d at 271. However,
because Ollison did not object to the restitution amount, it is reviewed for plain
error. United States v. Olano, 507 U.S. 725, 732 (1993).
2. Merits
The district court did not abuse its discretion in calculating the loss
amount for sentencing purposes, or commit plain error in calculating the
restitution amount. The Government was only required to prove the loss
amount by a preponderance of the evidence. See Bieganowski, 313 F.3d at 294.
The PSR set the loss amount at $64,633, which increased Ollison’s base offense
level by six. See U.S. SENTENCING GUIDELINES MANUAL § 2B1.1(b)(1) (2006).
This six-level enhancement applies when the loss amount is more than $30,000
but less than $70,000. Ollison challenges the enhancement by making the same
sufficiency-of-the-evidence argument that we previously rejected, and she claims
that the appropriate loss amount should be $15,000, which is the minimum
amount of loss sufficient to sustain her conviction.
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No. 07-11029
“Generally, a PSR bears sufficient indicia of reliability to permit the
sentencing court to rely on it at sentencing. The defendant bears the burden of
demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence,
the sentencing court may properly rely on the PSR and adopt it.” United States
v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995) (internal citation omitted). According
to the PSR, the probation officer calculated the loss amount through review of
the indictment, the investigative materials provided by the FBI, and an
interview with Sepeda. We find that there is sufficient evidence for the district
court to have concluded that the loss amount exceeded $30,000 for sentencing
purposes. Sepeda’s testimony was credible and supported by documentary
evidence and Ollison’s own admissions. For similar reasons, the district court
did not plainly err in calculating the restitution amount.
F. Sentencing Enhancement for Abuse of a Position of Trust
1. Standard of Review
“The application of [U.S. Sentencing Guidelines Manual] § 3B1.3 is a
sophisticated factual determination reviewed under the clearly erroneous
standard.” United States v. Fisher, 7 F.3d 69, 70-71 (5th Cir. 1993); see also
United States v. Dial, 542 F.3d 1059, 1060 (5th Cir. 2008) (per curiam) (resolving
an intra-circuit split regarding the applicable standard of review).
2. Merits
Ollison received a two-level enhancement under § 3B1.3 for abusing a
position of public or private trust in a manner that significantly facilitated the
commission or concealment of the offense. Application Note 1 of § 3B1.3 states
the following:
“Public or private trust” refers to a position of public or private trust
characterized by professional or 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
17
No. 07-11029
adjustment to apply, the position of public or private 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, applies 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 does not apply in the case of an
embezzlement or theft by an ordinary bank teller or hotel clerk
because such positions are not characterized by the above-described
factors.
“[C]ommentary in the Guidelines Manual that interprets or explains a guideline
is authoritative unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v.
United States, 508 U.S. 36, 38 (1993). The district court applied the
enhancement for the following reasons: (1) although approximately 1,200 DISD
employees had P-Cards, not every employee had one; (2) P-Card holders were in
a position of trust because they used the card to make purchases on behalf of
DISD; and (3) Ollison was secretary to the Superintendent, who was a high-
ranking DISD official.8 We conclude that the district court clearly erred in
applying this enhancement to Ollison.
The § 3B1.3 enhancement is appropriate if (1) Ollison occupied a position
of trust, (2) that she used to significantly facilitate the commission or
concealment of the offense. United States v. Kay, 513 F.3d 432, 459 (5th Cir.
2007). Thus, the sentencing court must conduct a two-step inquiry when
considering whether to apply the § 3B1.3 enhancement. “First, the court must
determine whether the defendant occupied a position of trust at all. If not, the
inquiry ends and no enhancement accrues. If, however, this initial query
8
Although Ollison was secretary to the Superintendent, who was a high-ranking DISD
official, the Government does not explain why the Superintendent’s authority should be
imputed to Ollison.
18
No. 07-11029
produces an affirmative response, the court must proceed to ascertain the extent
to which the defendant used that position to facilitate or conceal the offense.”9
United States v. Reccko, 151 F.3d 29, 31 (1st Cir. 1998). The Reccko two-step
inquiry is consistent with the law of this circuit. See Kay, 513 F.3d at 459
(describing it as a “two-part test”). In United States v. Brown, we stated: “By its
terms, § 3B1.3 encompasses two [conjunctive] factors: (1) whether the defendant
occupies a position of trust, and (2) whether the defendant abused his position
in a manner that significantly facilitated the commission or concealment of the
offense.” 941 F.2d 1300, 1304 (5th Cir. 1991) (per curiam) (emphasis added).
Logically, one must occupy a position of trust before one can abuse it.
a. Position of Trust
To a lay person, it might appear that Ollison occupied a position of trust
because she had limited authority to purchase various items with her P-Card.
DISD “trusted” that Ollison would not use her P-Card to make personal
purchases. However, if the § 3B1.3 enhancement relied on this colloquial
definition of “position of trust,” then most if not all employees who stole from
their employers would be subject to the enhancement because the employers
“trusted” that their employees would not steal. See United States v. Edwards,
325 F.3d 1184, 1187 (10th Cir. 2003) (“[T]he adjustment under § 3B1.3 is not
intended to be routinely applied to every employee fraud or embezzlement
case.”); see also United States v. Garrison, 133 F.3d 831, 838 (11th Cir. 1998)
(stating that “because there is a component of misplaced trust inherent in the
concept of fraud, a sentencing court must be careful not to be ‘overly broad’ in
9
The dissent “conflate[s] the requisite inquiries. Rather than asking, first, whether
[Ollison] held a position of trust, and if so, whether she used that position to facilitate a crime,
the [dissent] essentially determine[s] that [Ollison] held a position of trust precisely because
her job enabled her to commit the crime.” Reccko, 151 F.3d at 32. We do not believe that
Ollison’s secretary position embodied the kind of professional or managerial discretion that is
the signature characteristic of a position of trust.
19
No. 07-11029
imposing the [§ 3B1.3] enhancement”) (internal citation omitted). For purposes
of this enhancement, a “position of trust” is a term of art that must be defined
through reference to the guideline commentary and our case law. See Stinson,
508 U.S. at 38. A position of trust is characterized by (1) professional or
managerial discretion (i.e., substantial discretionary judgment that is ordinarily
given considerable deference), and (2) minimal supervision. See U.S.
SENTENCING GUIDELINES MANUAL § 3B1.3 cmt. n.1 (2006); see also United States
v. Brown, 7 F.3d 1155, 1161 (5th Cir. 1993) (“The primary trait that
distinguishes a person in a position of trust from one who is not is the extent to
which the position provides the freedom to commit a difficult-to-detect wrong”).
According to the dissent, Ollison occupied a position of trust because
“Ollison was given substantial autonomy to make purchases using her P-Card
on behalf of the [Superintendent’s] office.” However, Ollison’s discretionary
authority to make official purchases on her P-Card was limited to a few discrete
categories of inexpensive items.10 The level of professional or managerial
discretion held by Ollison is not commensurate with the level of discretion held
by other defendants in this circuit who have been subject to the enhancement.
Absent proof of other aggravating circumstances, we do not think that the §
3B1.3 enhancement should apply to a secretary who made unauthorized charges
on a corporate credit card that was issued to 1,200 other employees. Ollison’s
fraud is the modern day equivalent of an ordinary bank teller who was pilfering
money from the till. See Edwards, 325 F.3d at 1187 (“Opportunity and access
10
Ollison was only authorized to buy snacks, sodas, finger foods, candy, condiments,
flatware, box lunches, coffee, treats, and arrange for catering and receptions. She was not
authorized to buy linen or decorate the office. This minimal level of purchasing authority
cannot accurately be characterized as “substantial discretionary judgment that is ordinarily
given considerable deference.”
20
No. 07-11029
do not equate to authority, or to the kind of ‘substantial discretionary judgment
that is ordinarily given considerable deference.’”) (citation omitted).11
A recent case from the D.C. Circuit explains why Ollison did not occupy a
position of trust for purposes of the § 3B1.3 enhancement. In United States v.
Tann, the defendant stole money from her former employers by forging checks
and depositing them in her personal checking account. 532 F.3d 868, 870-71
(D.C. Cir. 2008). Tann worked as the office manager for two non-profit
organizations: DCCIL and Generations. Id. At DCCIL, her duties included
“hiring, ordering equipment, scheduling travel, and managing the expenditures
and checks that were written.” Id. at 870. (ellipsis and brackets omitted). At
Generations, her duties included preparing checks, maintaining a computerized
check ledger, and reconciling monthly bank statements with the ledger. Id. at
871. In concluding that Tann did not occupy a position of trust for purposes of
the § 3B1.3 enhancement, the D.C. Circuit stated the following:
Tann may have occupied a position of trust in the colloquial sense
that she was trusted not to use her access for nefarious purposes; in
that sense, so is every bank teller who has access to the bank’s
money and every janitor who cleans an office where desk drawers
are left unlocked. Like the bank teller or the janitor, however, Tann
did not have a job that required her to exercise professional or
managerial discretion, which is the standard set forth in the
application note to the Guideline. As we have said before, to apply
the enhancement to a defendant merely because he or she is
entrusted with valuable things and has little or no supervision while
performing his or her duties would stretch the abuse-of-trust
enhancement to cover endless numbers of jobs involving absolutely
no professional or managerial discretion, in clear contravention of
the plain language of the commentary to section 3B1.3.
Id. at 875-76 (citation omitted).
11
Contrary to the position of the dissent, it is not enough that Ollison merely “had
access to an opportunity not available to the general public.”
21
No. 07-11029
Similarly, in this case, Ollison’s duties as secretary were clerical in nature.
Her limited authority to make official purchases with her P-Card is not the type
of professional or managerial discretion contemplated by the application note to
the Guidelines. Id. at 875. Ollison’s authority to purchase inexpensive, food-
related items for her office does not “involve the type of complex, situation-
specific decisonmaking that is given considerable deference precisely because it
cannot be dictated entirely by, or monitored against, established protocol.”
United States v. Tiojanco, 286 F.3d 1019, 1021 (7th Cir. 2002). Like all
employees, Ollison was trusted not to steal, but her secretary position did not
give her “substantial discretionary judgment,” the exercise of which permitted
her to perpetrate the fraud.
b. Significantly Facilitate
Under the Reccko two-step inquiry, our analysis should end once we
conclude that Ollison did not occupy a position of trust. In this case, we will
proceed to the second step in order to fully address the arguments raised by the
dissent.
Even assuming arguendo that Ollison occupied a position of trust, the
Government did not provide sufficient evidence that Ollison used her secretary
position in a manner that significantly facilitated the commission or concealment
of the theft.12 In this case, the delay in detection is properly attributable to lax
12
We have previously applied the § 3B1.3 enhancement when a defendant with
substantial discretionary judgment has abused his or her authority in a manner that
significantly facilitated the commission or concealment of the offense. See, e.g., United States
v. Dial, 542 F.3d 1059, 1060 (5th Cir. 2008) (per curiam) (insurance adjuster subject to
enhancement because he used his position to settle and pay fraudulent claims up to $25,000,
which enriched himself and others); United States v. Kay, 513 F.3d 432, 461 (5th Cir. 2007)
(president of corporation subject to enhancement because he used his position to authorize his
employees to pay bribes to foreign government officials); United States v. Wright, 496 F.3d 371,
377 (5th Cir. 2007) (mortgage broker subject to enhancement because he used his position to
submit false information on loan applications to lenders with whom he had a pre-existing
relationship); United States v. Burke, 431 F.3d 883, 889 (5th Cir. 2005) (city alderman subject
to enhancement because he used his position to assist in the smuggling of drugs through his
22
No. 07-11029
oversight of the P-Card program by DISD, not concealment by Ollison. It was
simply “blind luck that she was not discovered sooner.” See United States v.
Ragland, 72 F.3d 500, 503 (6th Cir. 1996). Although Ollison did alter some
receipts before submitting them to DISD, her amateurish effort at concealment
was not furthered by or related to her secretary position. The dissent correctly
observes that Ollison was responsible for maintaining receipts for all purchases
that she made,13 but DISD never requested those receipts until the P-Card
program was terminated in July 2006. Ollison did not evade detection through
the abuse of substantial discretionary judgment that was associated with her
secretary position.
city); United States v. Buck, 324 F.3d 786, 795 (5th Cir. 2003) (chief executive officer of
nonprofit organization subject to enhancement because her position gave her “broad discretion,
autonomy, and ability to conceal the falseness of her claims”); United States v. Deville, 278 F.3d
500, 508 (5th Cir. 2002) (police chief subject to the enhancement because he used his position
to transport marijuana on the assumption “that his badge would enable him to transport drugs
without any problems from other law enforcement officials”); United States v. Reeves, 255 F.3d
208, 213 (5th Cir. 2001) (estate planner subject to enhancement because his position “gave him
unique access to clients’ financial information, facilitating his fraudulent schemes”); United
States v. Smith, 203 F.3d 884, 893-94 (5th Cir. 2000) (bank teller subject to enhancement
because her position made her privy to the bank’s internal operating and security procedures,
which significantly facilitated her bank robbery); United States v. Dahlstrom, 180 F.3d 677,
685 (5th Cir. 1999) (president and CEO of corporation subject to enhancement because his
position contributed to the commission and concealment of the crimes by allowing him to
misallocate his company’s investment funds); United States v. Powers, 168 F.3d 741, 752 (5th
Cir. 1999) (gas marketer subject to enhancement because he used his position to circumvent
his company’s policy to sell gas only to end-users with approved credit); United States v. Iloani,
143 F.3d 921, 923 (5th Cir. 1998) (doctor subject to enhancement because he used his position
to falsify medical findings, diagnoses, prescriptions, and treatment certifications that were
submitted to various insurers); United States v. Harrington, 114 F.3d 517, 519 (5th Cir. 1997)
(attorney subject to enhancement because his position helped him secure fraudulent affidavits
and “shrouded” his actions “with a false presumption of regularity and legality”); United States
v. Kay, 83 F.3d 98, 102 (5th Cir. 1996) (defendant subject to enhancement because her position
gave her access to the victim’s private banking records and allowed her to transfer funds
between banks without detection); United States v. Scurlock, 52 F.3d 531, 541 (5th Cir. 1995)
(correctional officer subject to enhancement because her position allowed her to interact with
prisoners and smuggle money into the prison).
13
Ollison did not have supervisory or auditing authority over any other DISD employee
who used a P-Card.
23
No. 07-11029
Ollison’s position as a secretary gave her the opportunity to commit the
crime, but the discretionary authority associated with that position was not
instrumental in accomplishing the fraud.14 Because Ollison’s legitimate
spending authority was severely limited, it did not assist her in achieving her
illegitimate objective. See Tiojanco, 286 F.3d at 1021; see also Ragland, 72 F.3d
at 503 (“[T]here is no indication that what little autonomy defendant did possess
in any way facilitated her scheme . . . .”). This case is distinguishable from
United States v. Smith, where we held that a bank teller was subject to the
enhancement because her position gave her “knowledge of the inner workings
of the bank and its security measures[, which] significantly facilitated the
commission of the offense.” 203 F.3d 884, 893 (5th Cir. 2000). Ollison’s
secretary position did not give her insider knowledge or access to private records
that facilitated the commission of the theft.15 Ollison’s misuse of her P-Card,
without more, does not subject her to the § 3B1.3 enhancement. See United
14
“To determine whether the position of trust ‘significantly facilitated’ the commission
of the offense, the court must decide whether the defendant occupied a superior position,
relative to all people in a position to commit the offense, as a result of her job.” United States
v. Wright, 496 F.3d 371 376 (5th Cir. 2007) (citation omitted). The proper inquiry is whether
the superior position afforded an opportunity not enjoyed by the general public. United States
v. Powers, 168 F.3d 741, 752 (5th Cir. 1999). In order for the enhancement to apply, the
superior position must not only provide the opportunity to defraud, but also significantly
facilitate its commission or concealment. See id.; see also United States v. Brown, 941 F.2d
1300, 1305 (5th Cir. 1991).
15
In Kay, the defendant “had access to the [victims’] private banking records and,
because of her accounting related skills, was able to transfer funds from bank to bank without
detection.” 83 F.3d at 102. Similarly, in Reeves, the defendant had “unique access to clients’
financial information.” 255 F.3d at 213. “Only after gaining his clients’ trust by posing as an
estate planner did he advise them to invest in his codefendant’s company.” Id. at 212. Ollison,
an ordinary secretary who made unauthorized charges on her corporate credit card, cannot be
analogized to Reeves, a sophisticated estate planner with insider knowledge who tricked his
elderly clients into investing in sham companies, or to Kay, an accountant and bookkeeper who
used fictitious bank accounts, forgeries, and insider knowledge to embezzle approximately
$180,000 from her employer. In both Kay and Reeves, the defendant’s position not only
provided the opportunity to defraud, but also significantly facilitated its commission or
concealment.
24
No. 07-11029
States v. Hemmingson, 157 F.3d 347, 359-60 (5th Cir. 1998) (affirming the
district court’s refusal to apply the enhancement to an attorney who “never
performed legal services to facilitate or conceal the crime”).
III. CONCLUSION
We affirm Ollison’s conviction but vacate her sentence and remand with
instructions not to apply the § 3B1.3 enhancement for abuse of a position of
trust.
AFFIRMED IN PART; REVERSED IN PART; REMANDED
25
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting in part.
Although I concur with the majority’s holdings affirming the conviction
and upholding the calculation of the loss and restitution amounts, I respectfully
dissent from the holding that the district court clearly erred in applying a two-
level sentencing enhancement under USSG §3B1.3 for abuse of a position of
trust. As we have held, a “district court’s application of § 3B1.3 is a
sophisticated factual determination that will be affirmed unless clearly
erroneous.” United States v. Ehrlich, 902 F.2d 327, 330 (5th Cir. 1990).
Accordingly, we must not substitute our views for those of the district court, and
must affirm if there is sufficient evidence to indicate that the defendant
maintained a position of private trust and abused that position in a manner that
significantly facilitated the commission of the offense. See id. Because the
record indicates that there was sufficient evidence to support the district court’s
conclusion, I would affirm the application of the two-level enhancement.
The district court did not clearly err in finding that Ollison occupied a
position of trust. As the majority notes, “[t]he primary trait that distinguishes
a person in a position of trust from one who is not is the extent to which the
position provides the freedom to commit a difficult-to-detect wrong.” See United
States v. Brown, 7 F.3d 1155, 1161 (5th Cir. 1993).1 As a secretary to the
Superintendent of the Dallas Independent School District (“DISD”), Ollison was
given substantial autonomy to make purchases using her P-Card on behalf of the
office. The majority is correct that DISD policies limited her authority to make
1
The majority also relies on language from various other Circuits interpreting § 3B1.3
that we have not adopted. Rather than focusing (as other Circuits do) on the complexity of the
employee’s duties or the governability of these duties through established protocol, our cases
focus on the level of power and freedom an employee has that might be abused and how this
power compares to that possessed by the general public. See, e.g., Brown, 7 F.3d at 1161;
United States v. Dial, 542 F.3d 1059, 1060 (5th Cir. 2008); United States v. Powers, 168 F.3d
741, 752 (5th Cir. 1999); United States v. Brown, 941 F.2d 1300, 1305 (5th Cir. 1991); Ehrlich,
902 F.2d at 331. Ollison’s situation is properly analyzed according to our interpretation of §
3B1.3 rather than the jurisprudence of other Circuits.
26
purchases to certain office-related items, but on this record the autonomy that
she had to make whatever purchases she pleased was significant. Unlike many
other DISD employees, Ollison was issued a P-card that enabled significant and
supervision-free spending. Further, Ollison was charged with the authority to
review and reconcile her own bank statements from the P-card, indicating that
she was trusted to self-police her own purchases. That DISD policies limited her
authorized purchases to arguably minor items does not change the fact that the
P-card itself and the limited oversight of her spending decisions allowed her to
exercise substantial discretionary judgment. Overall, Ollison was entrusted with
the freedom to exercise judgment when using the P-card, and her wrongful
actions proved difficult to detect because of this freedom. See id.
Moreover, the district court did not clearly err in concluding that Ollison
used her position of trust to significantly facilitate the commission or
concealment of the offense. She abused the fact that she was afforded very little
oversight in using the P-card, which allowed her to make unauthorized
purchases in the amount of $64,633. As stated in the Presentence Report,
Ollison was able to evade detection because she was responsible for maintaining
receipts for all purchases and for reviewing and reconciling the bank statements
after the P-Card purchases were made.2 Regardless of the majority’s assertions
that Ollison could have been detected sooner and that her efforts at concealment
were “amateurish,” the fact remains that her self-policing duties and freedom
from oversight facilitated her ability to purchase the personal items without
detection. Again, there is sufficient evidence to support the district court’s
conclusion that Ollison’s position significantly facilitated her crime, and we must
not substitute our own interpretation of the facts for that of the district court.
2
A crime resulting from lax supervision will not always support the application of the
§3B1.3 enhancement; however, in this case the record supports the finding that Ollison
maintained enough freedom from supervision to facilitate the commission of the offense.
27
Ollison’s discretion in using her P-Card also distinguishes her from the
situations explicitly excluded by § 3B1.3. The Commentary to § 3B1.3 clarifies
the definition of “public or private trust”:
This adjustment, for example, applies 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 does not apply in the case of an
embezzlement or theft by an ordinary bank teller or hotel clerk
because such positions are not characterized by the above-described
factors.
Unlike the ordinary bank teller or hotel clerk, Ollison was entrusted with
the responsibility of using her P-Card to make necessary purchases))a
responsibility that was not given to every employee of the DISD. The bank teller
in the above example and the office manager in United States v. Tann cited by
the majority were not given the authority to take money or forge checks in some
situations but not others. See 532 F.3d 868, 870-71. Although in these cases the
offenders had the capability and the access necessary to commit theft, the reason
that they were not in a position of trust is that they did not have the freedom to
exercise any judgment as to when the action constituted theft and when it did
not. Here, Ollison could exercise judgment as to whether or not a purchase was
necessary for the Superintendent. She had the freedom to make the purchase
without supervision, and the purchase was only illegal if it was not for the
Superintendent and she failed to reimburse the money. In the above examples,
the bank teller pocketing money and the office employee forging checks was
illegal in all circumstances regardless of the individual’s judgment.
Ollison’s situation is unique compared to other examples from the
Sentencing Guidelines and our case law. As the majority notes, the proper
inquiry under § 3B1.3 is whether the defendant’s position affords him or her an
opportunity not enjoyed by the general public. United States v. Powers, 168 F.3d
28
741, 752 (5th Cir. 1999). As a P-Card holder who was able to charge to the
government tens of thousands of dollars in purchases, both authorized and
unauthorized, Ollison quite clearly had access to an opportunity not available
to the general public. Further, she was entrusted by the Superintendent, DISD,
and the United States government to use her judgment regarding what
purchases were necessary for the Superintendent’s office and she was afforded
wide latitude to spend large amounts of money ostensibly to those ends.
In conclusion, under the deferential review we apply to the “sophisticated
factual determination” made below I do not find that the district court clearly
erred in enhancing Ollison’s sentence for abuse of a position of trust. Although
a de novo review might reach a different conclusion, the district court’s judgment
is not unsupported by the record. Accordingly, I concur in the first parts of the
opinion, but dissent from Part II(F)(2).
29