United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 5, 2008 Decided July 11, 2008
No. 06-3134
UNITED STATES OF AMERICA,
APPELLEE
v.
GWENDOLYN TANN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00392-01)
Dennis M. Hart, appointed by the court, argued the cause
and filed the brief for appellant.
Stratton C. Strand, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and Roy W. McLeese, III, Elizabeth Trosman, and
Timothy G. Lynch, Assistant U.S. Attorneys.
Before: GINSBURG, ROGERS, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
2
GINSBURG, Circuit Judge: Gwendolyn Tann was convicted
of fraud and sentenced to 40 months in prison for embezzling
thousands of dollars from three different employers. We affirm
her conviction but remand for resentencing because the district
court erred in concluding Tann occupied a “position of trust” as
that term is defined in the United States Sentencing Guidelines.
I. Background
In May 1998, Tann was hired as the office manager of the
D.C. Center for Independent Living (DCCIL), a small non-profit
organization.* Her duties included “hiring, ordering equipment,
scheduling travel, ... [and] managing the expenditures[] and
checks that were written.” She maintained the organization’s
check ledger, but was not authorized to write checks on behalf
of the organization.
In May or June of 1999, Jody Wildy, the Executive Director
of the DCCIL, noticed that some of its cancelled checks did not
match the descriptions in the ledger. After performing an audit,
she discovered several checks made out to Tann and bearing
Wildy’s forged signature. In July 1999, she confronted Tann,
who responded by not returning to work. An investigation later
revealed that Tann, while at the DCCIL, had deposited
$21,134.85 in unauthorized checks into her bank account. She
spent the money primarily on clothing.
In 2001 Tann became the secretary for three small
construction companies: Utility Construction, Atlantic
Demolition, and Atlantic Craftsman, at a salary of $660 per
week. Her duties included “handl[ing] cost records, ma[king]
out the payroll checks, d[oing] the payroll.” She was not
*
We “[v]iew[] the evidence in the light most favorable to the
Government.” Evans v. United States, 504 U.S. 255, 257 (1992).
3
authorized to write checks on behalf of any of the companies.
Nevertheless, between January 1 and April 17, 2001 Tann
deposited into her bank account checks totaling $40,163.42,
each bearing the forged signature of Kenneth Swecker, a
corporate officer of two of the construction companies. She
spent much of that money on Internet gambling.
Tann later took a job with another non-profit organization,
Generations, where she started work in November 2002 as the
office and grant manager.* At Generations her duties included
preparing checks for the signature of Donna Butts, the Executive
Director, maintaining the computerized check ledger, and
ensuring monthly bank statements matched the ledger. In May
2003, when Butts became concerned about errors in the
computerized checking system, Tann resigned. After
investigating, Butts discovered Tann had deposited into her own
account several checks bearing Butts’ forged signature, some
dating back to January 2003. In all Tann took $23,833.78 from
Generations. Meanwhile, she continued to spend heavily on
Internet gambling.
In August 2004 Tann was indicted on 18 counts (one for
each forged check) of bank fraud, in violation of 18 U.S.C. §
1344; one count of wire fraud, in violation of 18 U.S.C. § 1343;
and one count of fraud in violation of the law of the District of
Columbia. A jury found her guilty on all counts. Pursuant to
the United States Sentencing Guidelines, the district court
enhanced her sentencing range by two levels on the ground that
her offenses involved abuse of a position of trust. See UNITED
*
She applied for the job by faxing her resume, which made no
mention of her employment with the construction companies. This
fax, which she sent from Virginia to Washington, DC, was later used
to support the element of interstate communication necessary to
convict Tann of wire fraud.
4
STATES SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 3B1.3.
The court sentenced Tann to 40 months in prison: 30 months on
each of the 19 federal counts, to run concurrently, and 10
months on the D.C. count, to run consecutively.
II. Analysis
Tann raises three challenges on appeal. First, she argues the
district court erred in admitting the forged checks into evidence.
Second, she contends there was insufficient evidence to support
her conviction for wire fraud. Third, she challenges the district
court’s enhancement of her sentence for abusing a position of
trust.
A. Admission of Forged Checks
The district court accepted into evidence copies of the 18
forged checks that formed the basis for Tann’s conviction on the
18 counts of bank fraud. Each check instructs the bank to pay
money from the account of her employer “to the order of
Gwendolyn Tann.” Tann contends those statements are
inadmissible hearsay evidence.
Tann did not, however, make this argument at trial; indeed
her lawyer repeatedly agreed in the district court that the forged
checks were admissible.* In its written opinion, the district court
expressly noted Tann had not objected to the admission of the
forged checks. 425 F. Supp. 2d 26, 28-29 (2006).
*
See 2/27/06 Tr. at 7 (“[COUNSEL]: I have to say I was ...
persuaded ... that ... the employer’s checks ... are not being offered to
prove the truth ... o[f] the fraud”); id. at 18 (“THE COURT: ... [T]he
employer’s checks, in terms of their being [admissible], I’m assuming
that you’re not disputing that .... [COUNSEL]: That’s correct”).
5
Ordinarily an objection not made in the district court is
reviewable on appeal only for plain error. See FED. R. CRIM. P.
52(b); United States v. Weaver, 281 F.3d 228, 232 (D.C. Cir.
2002) (“Plain error assumes that the court should have
intervened sua sponte because the error was so obvious”). In
this instance, however, the Government contends the objection
may not be reviewed at all because Tann’s lawyer agreed the
checks were admissible; that is, the objection was not merely
forfeit but waived. See United States v. Olano, 507 U.S. 725,
733 (“Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the intentional relinquishment or
abandonment of a known right” (internal quotation marks
omitted)); Weaver, 281 F.3d at 232 (“When defense counsel has
informed the court that he has no problem with admitting the
evidence, it may be too much to expect the trial court to second-
guess defense counsel’s position”); see also United States v.
Stearns, 387 F.3d 104, 108 (1st Cir. 2004) (“Although we can
review forfeited error for plain error, arguments which have
been affirmatively waived are not normally reviewable on
appeal”). In this case, however, the statements made by Tann’s
lawyer, reviewed in context, could be understood as merely
acquiescing in rather than inviting the district court’s decision
to admit the evidence, and hence a forfeiture rather than a
waiver. Cf. In re Sealed Case, 108 F.3d 372, 373-74 (D.C. Cir.
1997).
Assuming without deciding the objection was forfeit rather
than waived, we conclude there was no plain error in the
admission of the checks. Hearsay is “a statement, other than one
made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.”
FED. R. EVID. 801(c). Here the checks were not admitted to
prove the truth of any statement asserted thereon. Rather, the
Government offered the checks only to prove they had been
created by Tann. It proved through other evidence that the
6
checks were forged. See Anderson v. United States, 417 U.S.
211, 219-20 (1974) (holding evidence not inadmissible hearsay
because admitted “to prove that the statements were made so as
to establish a foundation for later showing ... they were false”
(footnote omitted)).
B. Sufficiency of the Evidence
Tann next contends there was insufficient evidence to
convict her of wire fraud. To prove wire fraud, the Government
must show: (1) the defendant “knowingly and willingly entered
into a scheme to defraud”; and (2) “an interstate wire
communication was used to further the scheme.” United States
v. Alston-Graves, 435 F.3d 331, 337 (D.C. Cir. 2006).
The Government’s theory was that (1) Tann had already
formed a scheme to defraud Generations when she applied for
a position there and (2) the interstate fax of her resume was sent
in furtherance of that scheme. Tann argues the Government did
not prove she had “entered a scheme to defraud” when she sent
the fax. According to Tann, no reasonable jury could find she
intended to defraud Generations when she sent the fax because
there is no evidence she was then aware Generations would have
the lax security procedures necessary for her to perpetrate the
fraud.
We must affirm a guilty verdict if a reasonable jury could
have found the essential elements of the crime beyond a
reasonable doubt. Regalado Cuellar v. United States, 128 S. Ct.
1994, 2006 (2008). Here the Government presented more than
enough evidence to meet this standard. When she applied for
the position at Generations, Tann had recently defrauded two
similarly small organizations while working as their secretary or
office manager; almost immediately after she arrived, she began
defrauding Generations in the same way she had the others. In
7
view of this pattern of conduct, a reasonable jury could infer
Tann had the requisite intent to defraud Generations when she
faxed it her resume.
C. Sentence Enhancement
The district court enhanced by two Tann’s Sentencing
Guidelines base offense level in light of its finding that Tann
had abused a “position of trust” while working at the DCCIL
and at Generations. The court then gave Tann the maximum
sentence in the applicable range. Tann challenges the
enhancement.
1. Standard of review
In United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court held the United States Sentencing Guidelines
violated the Sixth Amendment to the Constitution of the United
States because they authorized (and indeed required) the court
to enhance a sentence beyond the statutory maximum based
upon a fact not found beyond a reasonable doubt by a jury. Id.
at 244; see also id. at 232 (“[T]he ‘statutory maximum’ ... is the
maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the
defendant” (internal quotation marks and emphasis omitted)).
The Court’s remedy was to “make[] the Guidelines ... advisory”
in all cases: It “requires a sentencing court to consider
Guidelines ranges ... but permits the court to tailor the sentence
in light of other statutory concerns as well.” Id. at 245. In
accordance with Booker and its sequel, Gall v. United States,
128 S. Ct. 586 (2007), our review of a sentence proceeds in two
steps:
[The court] first ensures that the district court committed no
significant procedural error, such as ... improperly
8
calculating[] the Guidelines range .... Assuming that the
district court’s sentencing decision is procedurally sound,
the ... court ... then consider[s] the substantive
reasonableness of the sentence imposed under an
abuse-of-discretion standard.
Id. at 597; see also United States v. Olivares, 473 F.3d 1224,
1226 (D.C. Cir. 2006) (“[Procedural] error encompasses ...
incorrect applications of the Guidelines to the facts”).
In this case Tann contends the district court committed an
error of law in calculating the Guidelines range, rendering the
sentence per se unreasonable. In particular, Tann argues the
district court erred by applying the enhancement for abusing a
“position of trust” on the facts of her case. Before reaching the
merits of her argument, we consider the standard by which we
review a district court’s application of the now-advisory
Guidelines to the facts of the case.
Prior to Booker, appellate review of a sentence was
governed by 18 U.S.C. § 3742(e), one provision of which
required us to give “due deference to the district court’s
application of the guidelines to the facts.” We interpreted the
“due deference” standard as lying “presumably ... somewhere
between de novo and ‘clearly erroneous.’” United States v. Kim,
23 F.3d 513, 517 (D.C. Cir. 1994). In Booker, the Supreme
Court held § 3742(e) unconstitutional to the extent it required an
appellate court to reverse a sentence that fell outside the
mandatory Guidelines range. 543 U.S. at 245. Since Booker we
have assumed without deciding that § 3742(e) continued to
govern our review in other respects and have given “due
deference” to the district court’s application of the Guidelines to
facts when we determined whether it correctly computed the
advisory Guidelines range. See United States v. Day, 524 F.3d
1361, 1367, 1373-74 (2008). In this case we hold the due
9
deference standard is still operative.
The “due deference” standard survives Booker because that
case did “not change[] how the Guidelines range is to be
calculated.” United States v. Dorcely, 454 F.3d 366, 375 n.6
(D.C. Cir. 2006). Accordingly, when we apply the first step of
the two-step process outlined in Gall and Olivares, we do
precisely what we did prior to Booker -- determine whether the
district court correctly calculated the Guidelines range and
remand for resentencing if it did not. We therefore see no
reason to think Booker displaced the congressionally mandated
standard of review of a district court’s application of the
Guidelines to facts. As we noted in Olivares, every circuit to
have considered the matter has arrived at the same conclusion.
473 F.3d at 1227-28.
2. “Position of trust”
The applicable Guidelines base offense level is enhanced by
two if the court finds 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. § 3B1.3.
In order to prevent the enhancement from applying to virtually
every fraud and theft case, the application note to that provision
provides a rather specialized and narrow definition of the phrase
“position of trust”:
“[T]rust” refers to a position of ... 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 .... This adjustment, for example, applies in the case
of an embezzlement of a client’s funds by an attorney
10
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.
Tann contends she did not occupy a position of trust within
the meaning of U.S.S.G. § 3B1.3. She characterizes her position
as “ministerial” and argues she was able to commit fraud only
because of lax supervision. The Government argues Tann
occupied a position of trust because she “exercised significant
professional judgment.”
We appreciate the care with which the district court
reached its decision that Tann occupied a position of trust.
Giving due deference to that court’s decision in favor of the
Government,* we are nonetheless constrained to agree with
*
We have not been consistent on the standard of review of a
district court’s determination whether a defendant occupied a position
of trust within the meaning of U.S.S.G. § 3B1.3. Compare United
States v. Day, 524 F.3d 1361, 1374 (2008), and United States v. West,
56 F.3d 216, 219 (1995) (de novo review), with United States v.
Robinson, 198 F.3d 973, 978 (2000), United States v. Becraft, 117
F.3d 1450 (1997), United States v. Barrett, 111 F.3d 947, 954 (1997),
and United States v. Broumas, 69 F.3d 1178, 1180 (1995) (due
deference review). We conclude that, insofar as the district court
applied the “abuse of trust” Guideline to the facts of Tann’s case, due
deference is the appropriate standard of review. “A district judge’s
determination [about] a given set of facts ... will typically not be
exactly replicated in any other case. And therefore there is less reason
to insist on the uniformity that a question of law typically requires.”
Becraft, 117 F.3d at 1451 n.1 (quoting United States v. Kim, 23 F.3d
513, 517 (D.C. Cir. 1994)) (internal quotation marks omitted).
11
Tann; the facts simply do not support the conclusion that Tann
occupied a position of trust as defined in the Guidelines. Tann’s
responsibilities consisted of preparing checks, entering
information into a computerized check ledger, and determining
whether the cancelled checks received from her employer’s bank
matched the information in the ledger. She was able to
perpetrate her fraud by forging false checks, entering false
information into the ledger, and disposing of cancelled checks
she had made payable to herself. All her tasks were clerical in
nature; none required her to exercise the type of “professional or
managerial discretion” contemplated by the application note to
the Guidelines. The district court stated that Tann was “trusted
to handle the finances of the organization[s],” but the court
neither identified any specific task that required the exercise of
professional or managerial discretion nor explained how her
exercise of discretion permitted her to perpetrate the fraud.
In reaching its contrary conclusion, the district court
emphasized that Tann had access to her employer’s blank
checks and ledger and was not closely supervised: “There was
some supervision but not a great deal.... Ms. Butts was
supposed to ... review[] ledgers[, but] didn’t do it during this
period of time for the most part.” The court said her employers
believed she occupied a position of trust for precisely -- and
solely -- that reason: “[T]he directors of those two organizations
... viewed her position as one of trust because of the access they
gave her to the blank checks, the bank statements, cancelled
checks, ledgers.”
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
12
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.
United States v. West, 56 F.3d 216, 221 (D.C. Cir. 1995); accord
United States v. Edwards, 325 F.3d 1184, 1187 (10th Cir. 2003)
(employee “trusted by her employer with significant
responsibility -- even to the point of allowing her to bypass
usual accounting controls and pick up customer checks from
incoming mail” did not occupy position of trust because she
lacked “authority to make substantial discretionary judgments
regarding company revenues or expenses”); United States v.
Helton, 953 F.2d 867, 870 (4th Cir. 1992) (“[B]eing subject to
lax supervision alone does not convert one’s job into a ‘position
of trust’”).
Our decision in United States v. Becraft, 117 F.3d 1450
(1997), which the Government invokes, is not to the contrary.
In that case we affirmed the district court’s decision that an
office manager who submitted numerous false purchase orders
and travel expense reports occupied a position of trust. We
based our conclusion upon the district court’s findings that the
defendant “occupied a trusted supervisory position ... entailing
substantial spending and reporting authority” and her supervisor
“permitted [her] to determine which purchases should be made
and accepted her decision without question.” Id. at 1452-53. In
other words, the defendant exercised managerial discretion --
she decided what to buy for the organization -- and was able to
13
perpetrate her fraud because her supervisor deferred to her
judgment. Here, the fraud did not arise out of the exercise of
discretionary judgment in any comparably meaningful sense.
On remand, the district court may conduct additional fact-
finding to determine whether Tann occupied a position of trust
as defined in the Guidelines. Regardless of its conclusion in that
regard, of course, the court retains broad discretion to impose a
sentence based upon the factors identified in 18 U.S.C. §
3553(a)(2). The advisory Guidelines range is only one such
factor. See Gall, 128 S. Ct. at 596-97.
III. Conclusion
For the foregoing reasons, we affirm Tann’s convictions,
and remand this case for resentencing.
So ordered.