United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 26, 1999 Decided January 18, 2000
No. 98-3100
United States of America,
Appellee
v.
Jeffrey M. Robinson,
Appellant
Appeal from the United States District Court
for the District of Columbia
(97-185-01)
Evelina J. Norwinski, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A.J. Kramer, Federal Public Defender.
Barbara A. Grewe, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, and John R. Fisher and Blanche L.
Bruce, Assistant U.S. Attorneys.
Before: Silberman, Williams, and Randolph, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: Lacking schools for emotionally
disturbed teenagers, the District of Columbia contracted for a
new school to be run by someone with a criminal record and
without any educational credentials. The someone was Jef-
frey Robinson, a 26-year-old insurance broker. Despite hav-
ing no college degree and no experience in education, he
obtained a contract to found the Kedar Day School. His
qualifications? He had once been a special education student
himself. The District canceled the contract after discovering
that Robinson had paid for fancy cars, a lavish party and
other personal luxuries with city money earmarked for the
school. A jury found Robinson guilty of ten counts of wire
fraud, 18 U.S.C. ss 2 and 1343, and one count of bank fraud,
18 U.S.C. s 1344. The district court imposed a sentence of
37 months, including a two-level upward adjustment for
"abuse of a position of trust," U.S.S.G. s 3B1.3. It ordered
restitution totaling $301,910.63. Robinson has appealed his
sentence, contesting the abuse of trust enhancement to his
sentencing level and the amount of restitution.
I
In August 1995, Robinson signed a contract with the Dis-
trict of Columbia Public Schools ("DCPS") to set up and
operate a school for up to fifty emotionally disturbed stu-
dents. Pursuant to its policy of providing appropriate, public-
ly supported education for emotionally disturbed students
residing in the District, DCPS places such students in private
schools when no adequate special education program is avail-
able within the school system. In such cases, DCPS pays the
costs of tuition and related services for the private placement.
See Presentence Report p 4, at 3.
Under the contract with DCPS, Kedar was to educate the
students and provide related services, including speech thera-
py, occupational therapy, physical therapy, clinical psychology
and social work. See Presentence Report p 6, at 4. Robinson
negotiated for the school--which he named the Kedar Day
School--to receive $15,000 per year for each student attend-
ing. Under the agreement, Robinson would bill DCPS for
tuition costs by submitting invoices listing the number of
students Kedar educated each month.
From the beginning, Robinson's agreement with DCPS was
laced with fraud. To get the contract, he indicated that he
had already secured a location for the school, when in fact no
such agreement existed. Days before the school was set to
open, Robinson arranged to lease part of a former DCPS
school building. Robinson was able to secure that lease by
having Kedar's business manager represent that Kedar had
obtained the necessary liability insurance, another complete
fabrication.
To pay expenses the school incurred before receiving pay-
ment, Robinson contracted with the Prinvest Corporation, a
financing company, which allowed him to borrow money
against the invoices submitted to DCPS. Prinvest would give
Robinson 80% of the invoice amount, less its fees and DCPS
would forward the checks directly to Prinvest. DCPS would
turn over the remaining 20% to Robinson.
Robinson sent the first invoice to DCPS in September 1995,
claiming 49 students attended Kedar that month. In fact,
Kedar had at most 25 to 30 students that month but Robinson
told the secretary who prepared the invoice to raise the
number so that the school would have "start up funds." For
each of the invoices that followed, Robinson also had the
secretary inflate the number of students. Invoices submitted
by Kedar during the months it was in operation totaled
$407,900, all of which DCPS duly paid.
Very little of that money went to school expenses. Two
days after Prinvest wired its first payment of approximately
$60,000 to Kedar's account, Robinson withdrew nearly three
quarters of that amount for personal expenditures, including
lease payments on two Mercedes Benz automobiles, a Fer-
rari, and a BMW. Meanwhile, Robinson told the Kedar staff
he lacked the money to pay them, blaming the D.C. govern-
ment for the hold up, and refused to hire the professional
counseling staff the contract required. In October, Prinvest
wired about $48,000 into the Kedar account, more than half of
which Robinson spent on expenses unrelated to the Kedar
School. In the months that followed, Robinson continued the
pattern of siphoning off Kedar funds for his own expendi-
tures. In December, he used money from the Kedar account
to throw himself an expensive birthday party at the Four
Seasons Hotel, inviting the Kedar staff to come and meet his
"millionaire friends." School funds also went toward paying
rent and a security deposit on an office for Robinson's
insurance business.
Kedar's expenses continued to go unpaid; the staff began
to leave and the students went unfed. On some occasions the
children were sent home because of understaffing. At other
times, the supervision was poor, so poor one student was seen
leaving via an open window. At no time did Kedar provide
the educational and counseling services required under the
DCPS contract. The students at Kedar had severe psycho-
logical problems; among them were victims of sexual abuse,
physical abuse and others suffering from a variety of behav-
ioral disorders. In need of long term, intensive psychological
services, they were supposed to receive psychological counsel-
ing, speech language therapy, and occupational and physical
therapy. But unlike the idealized biblical village that must
have inspired the school's name, see Song of Solomon 1:5
(King James); Isaiah 21:16 (King James), Kedar--as the
government aptly describes it--was basically a "warehouse"
for the children, with students and teachers "just sitting
around." Brief for Appellee at 20.
Robinson's scheme finally fell apart in March 1996 after he
persuaded Prinvest to allow him to pick up Prinvest's check
for $47,000 from DCPS and deliver it to Prinvest's D.C. office.
The check never arrived. Instead, Robinson convinced a
teller at Industrial Bank that Prinvest was one of the compa-
nies he owned and deposited the check in Kedar's account.
Failing to receive the check as promised, Prinvest ended its
agreement with Robinson. Shortly thereafter, DCPS learned
of the Prinvest incident, terminated its contract with Robin-
son, and took over operation of the Kedar school.
A federal grand jury indicted Robinson on eleven counts of
defrauding the District school system. Ten counts related to
the wire transfers to Kedar's account and one related to his
theft of the Prinvest check. After a few hours of deliberation,
a jury found Robinson guilty on the ten counts of wire fraud
and on the following day, reached a guilty verdict on the bank
fraud charge. At sentencing, the district court adjusted
Robinson's base offense level upward nine levels, because the
loss amount exceeded $350,000, see U.S.S.G. s 2F1.1(b)(1)(J),
and another two levels for more than minimal planning, see
U.S.S.G. s 2F1.1(b)(2)(A). Finding that Robinson had
abused a position of trust, see U.S.S.G. s 3B1.3, the court
added a two-level increase, bringing the total adjusted level to
19, with a range of 30 to 37 months. The judge sentenced
Robinson at the top of the range, noting with regret, "I think
that 37 months for this, for the crimes that were committed,
is not significant enough.... If I had had the authority ...
your sentence would be substantially more than 37 months--
substantially more." As for restitution, the district court
ordered Robinson to pay $301,910.63.
II
To comprehend Robinson's complaint about the two-level
upward adjustment for abuse of a position of trust, we need
to look at the sentencing transcript. The critical passage is
the one in which the sentencing judge adds up each of the
enhancements to arrive at Robinson's adjusted offense level.
Citing paragraph 27 of the presentence report, the judge
imposed the two-step adjustment to the base offense level
"because of Mr. Robinson's unique position as president of
Kedar School, and because of that unique position, that
significantly facilitated the commission of that bank-fraud
count." The statement can only be interpreted in reference
to the section of the presentence report the judge cited and
earlier exchanges during the sentencing hearing. Although
the presentence report is under seal, we can reveal that
paragraph 27 recommends an adjustment pursuant to
U.S.S.G. s 3B1.3 based on Robinson's abuse of his position at
the Kedar School. Elsewhere the report strikes the same
theme.
The government argued that Robinson should receive a
two-level increase because of his unique position with the
Prinvest Corporation, which facilitated theft of the $47,000
check. The judge went on to distinguish the government's
position from that taken by the probation office in the presen-
tence report, remarking that the two were not inconsistent.
Later, when questioning the probation officer, the judge again
inquired and was told that the two theories were not inconsis-
tent. The phrasing of the judge's reasoning in imposing the
enhancement makes sense in view of his focus on ensuring
that the two theories were not at odds. His specific reference
to the presentence report further signifies his reliance on the
probation office's sentencing recommendations. We are
therefore persuaded that the statement, imposing the adjust-
ment "because of Mr. Robinson's unique position as president
of Kedar School, and because of that unique position, that
significantly facilitated the commission of that bank-fraud
count," was intended to encompass both theories presented to
the court.
The question is whether the enhancement was justified on
either account. A two-level upward adjustment must be
entered "[i]f the defendant abused a position of public or
private trust ... in a manner that significantly facilitated the
commission or concealment of the offense." U.S.S.G.
s 3B1.3. Application of the provision requires the sentencing
judge to inquire "(1) whether the defendant occupied a posi-
tion of trust; and (2) whether the defendant abused that
position in a manner that significantly facilitated the commis-
sion or concealment of the offense." United States v. West,
56 F.3d 216, 219 (D.C. Cir. 1995).
"Public or private trust," the commentary guidelines ex-
plain, "refers to a position of public or private trust character-
ized by professional or managerial discretion." U.S.S.G.
s 3B1.3 application note 1. The position of trust must have
made the detection of the offense or the defendant's responsi-
bility for the offense more difficult. See id. It would apply,
for example, to "a bank executive's fraudulent loan scheme"
but not to a "theft by an ordinary bank teller" because that
position is not characterized by professional or managerial
discretion. Id. In United States v. Shyllon, we embraced
the following factors to guide us in determining whether a
particular position constitutes a position of trust:
The extent to which the position provides the freedom to
commit a difficult-to-detect wrong, and whether an abuse
could be simply or readily noticed; defendant's duties as
compared to those of other employees; defendants' level
of specialized knowledge; defendant's level of authority
in the position; and the level of public trust.
10 F.3d 1, 5 (D.C. Cir. 1993) (citing United States v. Queen, 4
F.3d 925, 928-29 (10th Cir. 1993)). Using this approach, we
conclude that as president of the Kedar School, Robinson did
occupy a position of public trust.
The D.C. Public Schools selected Robinson to found and
operate a school for its most severely emotionally disturbed
students.1 Paid for with city funds, the school was expected
to fulfill the District's obligation to provide a free public
education to all local school children. Parents of students
attending Kedar rightly expected that their children would
receive the education and counseling services they sorely
needed. Because Robinson was the founder and director of
the school, he gained the public trust of the community that
Kedar served. See United States v. Booth, 996 F.2d 1395,
1397 (2d Cir. 1993) (finding that status as a public school
teacher constitutes a position of trust); United States v.
Pigno, 922 F.2d 1162, 1164 (5th Cir. 1991) (holding that school
superintendent occupied a position of trust, making adjust-
ment for abuse of public trust appropriate).
__________
1 Students attending the Kedar School were classified by the
District of Columbia State Education Agency as seriously emotion-
ally disturbed. Categorized as Level 4 DCPS special education
students, they had needs that could not be accommodated by
traditional neighborhood schools. See Presentence Report p 5, at 3.
In that regard, the extraordinary level of discretion given
to Robinson in managing the day-to-day operations and fi-
nances at Kedar is hard to believe, particularly in light of his
non-existent qualifications. Kedar was located in a building
separate from any of the District's other public schools. As a
result, supervision of operations at Kedar occurred only
through periodic visits from DCPS special education moni-
tors. These monitors, who visited Kedar a total of three or
four times, were responsible for assessing the school's compli-
ance with federal law mandating that disabled students re-
ceive the educational and counseling services they require.
See 20 U.S.C. s 1412. Monitoring did not include a review of
Kedar's financial records. Robinson had full control over the
invoices he submitted, enabling him to inflate the number of
students with little fear of discovery. Further facilitating his
scheme, Robinson had sole access to Kedar's checking ac-
count at Industrial Bank. He had complete discretion in
hiring staff for Kedar and in setting its curriculum. His
authority over the school's employees was absolute. In his
capacity as president of Kedar School, and in view of the
broad managerial discretion that afforded, we find Robinson
did occupy a position of public trust within the meaning of
U.S.S.G. s 3B1.3. See, e.g., United States v. Becraft, 117
F.3d 1450, 1452-53 (D.C. Cir. 1997) (affirming abuse of trust
enhancement where office manager's final authority over
ordering and marketing activities facilitated scheme to de-
fraud her employer).
Robinson abused that trust by misappropriating school
funds and cheating emotionally disturbed children out of an
education. Instead of paying for textbooks and school
lunches, the DCPS money went toward promoting Robinson's
profligate lifestyle. His scheme to defraud the District of
Columbia government could not have been completed but for
Robinson's position as president and founder of the Kedar
School. He controlled the billing process, was subject to little
supervision from DCPS, and was the only person with access
to Kedar's account. By diverting the school's money to
expenditures unrelated to Kedar, Robinson exploited the role
entrusted to him, to the detriment of both the D.C. public
schools and its neediest students. See id.; United States v.
Broumas, 69 F.3d 1178, 1181-82 (D.C. Cir. 1995) (holding
bank director abused position of trust by using privileges of
position to execute check-kiting scheme).
We are obliged to give due deference to the district court's
application of the Sentencing Guidelines to the facts of this
case. See 69 F.3d at 1180-81 (citing United States v. Kim, 23
F.3d 513, 517 (D.C. Cir. 1994)). Doing so, we find the district
court's decision to impose an abuse of trust adjustment on
account of Robinson's position at the Kedar School wholly
appropriate. Because affirmance on this ground is sufficient,
we do not decide whether the circumstances surrounding
conversion of the Prinvest check would similarly warrant a
two-step adjustment.
III
The district court awarded restitution in the amount of
$301,910.63 to compensate the losses of DCPS and thirteen
individuals. That amount, the government concedes, should
be decreased by $13,000 to reflect money Robinson withdrew
but later returned to the Kedar checking account. See Brief
for Appellee at 45. Before oral argument, Robinson with-
drew his objection with respect to the sum used for his
personal expenses but still objects to the amount designated
for unpaid rent and for victims other than DCPS. Robinson
believes the money owed to Kedar employees and vendors
should be paid out of the restitution awarded to DCPS;
otherwise he claims, the court double counts these expenses.
His objections were never raised at sentencing. When he
argued against restitution in the district court, Robinson
objected only to his having to reimburse money that actually
went toward Kedar School's expenses. That amount was not
included in the restitution award approved by the district
court. Robinson failed to refute the restitution figures, recit-
ed in the presentence report, regarding the individual parties
and he did not contest the inclusion of unpaid rent and
salaries. The judge was therefore permitted to rely on the
figures set out in the presentence report without requiring
the government to present additional evidentiary support.
See United States v. Booze, 108 F.3d 378, 381-82 (D.C. Cir.
1997). As a result, Robinson's objections on appeal are
subject only to plain error review. See Fed. R. Crim. P. 52(b);
United States v. Wolff, 195 F.3d 37, 40 (D.C. Cir. 1999);
United States v. Saro, 24 F.3d 283, 287-88 (D.C. Cir. 1994).
Robinson's double counting argument does not make out a
case of plain error. The DCPS contract was for educational
services; hiring staff and procuring supplies was Robinson's
responsibility. By violating that contract, Robinson now owes
DCPS the amount it paid that was not used to provide the
contracted-for-services. In other words, he must reimburse
DCPS for all funds not used to educate students referred to
the Kedar School. DCPS, by contrast, has no obligation nor
agreement with Kedar's staff or vendors. Robinson alone is
responsible for the losses of DCPS and Kedar's employees.
It does not follow that DCPS should then pay the salaries and
expenses of the Kedar School. For similar reasons, the
unpaid rent should not be deducted from the diverted school
expenses. The lease contract was independent of the school
contract. As the government's brief rightly points out, had
Robinson chosen to lease property not owned by the District,
surely DCPS would not be held accountable for that property
owner's loss. See Brief for Appellee at 17 n.12. Because
Robinson cannot establish plain error, we uphold the order of
restitution but direct that it be reduced by $13,000 to correct
a computational error the government admirably has brought
to our attention.
Affirmed in part, modified in part.