MARK W. BENNETT, District Judge.
TABLE OF CONTENTS
I. INTRODUCTION ...........................................................950
II. FACTUAL BACKGROUND .....................................................955
A. Undisputed Facts ...................................................955
B. Disputed Facts .....................................................956
C. Admissibility of the Department of Labor Report ....................958
1. Standard for Admissibility of Evidence at Sentencing ...........959
2. Case Law on "Sufficient Indicia of Reliability" ................959
3. DOL Report has "Sufficient Indicia of Reliability" .............962
III. DISCUSSION .............................................................963
A. Standard for Abuse-of-Trust Enhancement ............................963
B. Parties' Arguments as to Abuse-of-Trust Enhancement ................964
C. Analysis Regarding Abuse-of-Trust Enhancement ......................966
1. Bartleson Occupied a Position of Private Trust .................966
2. Bartleson's Position Facilitated the Commission and
Concealment of the Embezzlement ...............................970
3. Enhancement Would Not Cause Double Counting ....................973
4. Application of Note 5 of the Sentencing Guidelines under
U.S.S.G. § 3B1.3 ..............................................975
a. First Clause of Note 5 .....................................976
b. Second Clause of Note 5 ....................................979
D. Restitution ........................................................983
1. Restitution Should Include Lost Investment Earnings and Tax
Liabilities ...................................................984
2. Payment Schedule for Restitution ...............................988
IV. CONCLUSION .............................................................990
V. APPENDIX ...............................................................991
In this criminal sentencing of a corporate vice president, who embezzled money from thirteen employees' retirement accounts, one of the fighting issues is whether he abused a position of trust. An insightful philosophical work entitled Trust and Antitrust focuses on the risks of bestowing trust upon another.
Baier's oft-cited article begins with the assertion that the "great moral philosophers," i.e., Plato and Aristotle, have not written much on the issue of trust. Id. at 232-33. "[W]hat we find can scarcely be said to be even a sketch of a moral theory of trust." Id. at 232. Other "great philosophers," i.e., Saint Thomas Aquinas, John Locke, and Thomas Hobbes, "have given explicit attention" to "some forms of trust," e.g., trust in God, governments and officials, and contracts and contractors, respectively. Id. at 233. Baier continues: "It is selective attention then, rather than total inattention, which is the philosophical phenomenon on which I wish to remark, tentatively to explain, and try to terminate or at least to interrupt." Id.
Advancing the philosophical dialogue on trust, Baier asserts that trust is a particular kind of reliance: "Trust ... is reliance on another's good will." Id. at 234.
Id. at 235 (emphasis added). Stated another way, when we trust others we accept that we are vulnerable to harm by others. Yet, we believe — and are confident — those we trust will not harm us, even though there is the "opportunity to harm." Id. To paraphrase Baier, the question then becomes: why do we put ourselves (or "the things we most value") in vulnerable positions for others to harm? Id. at 236. Her answer is simply that "we need [others'] help in creating, and then in not merely guarding but looking after the things we most value." Id. "[S]o," in Baier's words, "we have no choice but to allow others to be in a position to harm [the things we most value]." Id.
For Baier, trust implicates varying degrees of discretion.
The more discretion the truster gives to a trustee, the more vulnerable the truster becomes. This is because, as Baier explains, by entrusting "discretionary powers" to a trustee, a truster "risks abuse of [the discretionary powers] and the successful disguise of such abuse."
The Commentary of the Sentencing Guidelines clarifies the distinction between persons in positions of private trust and those that are not: "Persons holding such positions [of private trust] ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature." U.S.S.G. § 3B1.3 cmt. (n. 1) (emphasis added). While the word "supervision" is nowhere to be found in Baier's article,
This case involves the abuse of trust of the employees of Bartleson Masonry, Inc. (Bartleson Masonry) and the concealment of such abuse that occurred in 2006, 2007, and 2008. The employees of Bartleson Masonry relied on the good will of a longtime employer and friend. That employer, the Defendant, Anthony Bartleson (Bartleson), had discretionary authority and control over the management of the employees' SIMPLE Individual Retirement Account (IRA) plan (the Plan),
In this opinion, I address the sentence and restitution I ordered for Bartleson on February 6, 2015. I confront two issues in particular: (1) whether to apply the probation
The facts below are undisputed and taken from the sentencing record. In 1995, Bartleson and his brother, Stephen Bartleson, incorporated Bartleson Masonry in Iowa. The company conducted business in Forest City, Iowa. It provided masonry services, and specialized in brick and block work. Bartleson's brother served as the President, and Bartleson was Vice President, Secretary, and Treasurer. Bartleson and his brother were the only two incorporators, shareholders, and directors of Bartleson Masonry. Bartleson had signatory authority on the company's bank accounts and handled payroll.
In 1997, Bartleson Masonry established and sponsored a SIMPLE IRA plan through the American Funds Group (American Funds). The Plan allowed employees to make tax-free contributions through a salary deferral arrangement, and the Plan was subject to title I of the Employee Retirement Income Security Act of 1974. In establishing the Plan, Bartleson Masonry promised to match employee contributions up to three percent of the employee's compensation for the calendar year. In the beginning, Bartleson regularly deposited employer and employee contributions to the Plan. However, between March 2006 and March 2008, Bartleson withheld money from the pay of thirteen employees while performing his payroll responsibilities for the company.
Instead of forwarding the employees' withheld pay to the IRA fund manager to deposit the funds into each respective employee's investment account, Bartleson retained the money in Bartleson Masonry's bank account. Then, Bartleson used the employees' withholdings to pay for the company's operating expenses and to benefit Bartleson and others. Bartleson also failed to give the three-percent matching contribution from the company as promised. In total, Bartleson embezzled $25,979.71 from thirteen employees' paychecks that were not forwarded to American Funds, and he failed to pay $15,898.51 in employer matching contributions.
I will initially consider the contested facts in Bartleson's Presentence Investigation Report (PSIR) (docket no. 19) and his revised PSIR (docket no. 29), which includes the Department of Labor Report (DOL Report) (docket no. 29-1).
While under investigation by the DOL, the Bartleson brothers informed a DOL investigator that they, at times, did not receive paychecks in order to keep the company operating. Yet, their W-2 statements "[did] not indicate a decrease in wages for years 2006 and 2007." DOL Report at 7. While their 2008 W-2 statements indicated a decrease in wages, the "Company's bank records and credit cards disclosed personal benefit [for the Bartlesons]." Id. The Bartlesons also continued to receive salaries during the same period that the employees' withdrawals were not forwarded to the Plan.
In response, Bartleson takes issue with the PSIR and the DOL Report and allegations that the employees' withheld wages "were used to personally benefit the Bartlesons" and that the company's "accounts and credit cards were used primarily for personal use."
Id. 1. Bartleson objects to the report's "assumptions" that cell phone payments, football tickets, golf outings, and vacations were personal expenses. Id. at 2. Such payments were company-related expenses, and the expenses were used to benefit the employees, too. Additionally, Bartleson objects to the report's "assertion" that checks sent to Bartleson's father in Missouri were for his personal use when the home provided lodging for employees of the company when they worked on projects in Missouri. Id. The home was also offered to the employees as a place to vacation. In a footnote, Bartleson concedes that whether some of the business expenditures were "prudent business decisions is easy to question in hindsight" — namely, the Minnesota Vikings tickets, golf outings, and vacations. Id. at 2 n. 1.
In Bartleson's most recently filed brief, he also "objects to the truth of the statements attributed to Jason Thompson," in particular, the allegation that the Bartlesons owned homes or timeshares in Cancun, Mexico. Id. at 4. "That statement is simply false," writes Bartleson. Id. Yet, Bartleson does admit to purchasing "a single time share [in Cancun, Mexico] — for their own benefit and with the idea that their employees could access time share opportunities." Id. The timeshare no longer has value, according to the Bartlesons, because they have not paid the annual maintenance fee on the timeshare or used the timeshare for years. Bartleson contends that the DOL Report also overvalues his home's market value based in part on his outstanding mortgage and overvalues the base price of his two vehicles.
Additionally, Bartleson takes issue with the DOL Report regarding the W-2's for Bartleson Masonry employees for 2007. "The Appendix does not contain any of the W-2's for 2007, and Mr. Bartleson believes that the withholdings from Bartleson Masonry employee paychecks were properly reported on the W-2's as deferred income in that year."
Finally, Bartleson "objects to the calculation of `lost earnings' in the DOL Report and its exhibits." Id. at 2-3. According to Bartleson, the report does not explain its calculations nor account for individual statements, plan-wide statements, or historical information regarding the Plan. For Bartleson, the DOL Report is merely a "theoretical loss calculation," which fails to calculate the "actual lost earnings" of the employees. Id. at 3.
Having reviewed Bartleson's main objections to the DOL Report above, I now discuss why it was appropriate for me to admit and consider the DOL Report at Bartleson's sentencing. As noted above, on October 22, 2014, Bartleson's PSIR was amended to include a seventy-two page DOL Report.
On December 22, 2014, in advance of Bartleson's sentencing hearing, I informed the parties in an order that I "tentatively decided to admit and consider the DOL Report at Bartleson's sentencing hearing, subject to any objections, rebuttals to the reliability of the report, or explanations as to the reports factual assertions." Order Regarding Department of Labor (DOL) Report (docket no. 31), 4. In that order, in accordance with precedent of the Eighth Circuit Court of Appeals, I held that Bartleson would "have the opportunity to `rebut or explain' any disputed factual assertions in the DOL Report at his sentencing hearing." Id. at 5; see also United States v. Rodriguez-Ramos, 663 F.3d 356, 364 (8th Cir.2011) ("The evidence need not be limited to evidence relating to the scope of the crimes charged and may include uncorroborated hearsay, provided the defendant
I turn to briefly explain why, after considering Bartleson's objections in his supplemental brief and the evidence and arguments presented at Bartleson's sentencing hearing, I acted within my discretion to admit, consider, and rely on the DOL Report to sentence Bartleson and order restitution. Following my discussion of the lower standard for admitting and considering evidence at a sentencing hearing, I provide an overview of relevant case law on the kinds of investigative reports that courts have been permitted to consider at sentencings. In the end, I articulate the rationale underlying my decision to consider the DOL report at Bartleson's sentencing.
"The standard of admissibility for evidence at sentencing is different than at trial. A preponderance-of-the-evidence standard applies at sentencing." United States v. Monroy-Reynoso, No. CR 12-1609, 2012 WL 6632594, *5 (D.N.M. Dec. 13, 2012) (citing United States v. Manatau, 647 F.3d 1048, 1054 n. 2 (10th Cir.2011); United States v. Gomez-Arrellano, 5 F.3d 464, 466 (10th Cir.1993)). Courts have been clear that the "appropriate standard" for admitting evidence at a sentencing "is substantially lower than that governing admissibility at trial." United States v. McCaskey, 9 F.3d 368, 380 (5th Cir.1993). "Specifically, `[i]n resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant evidence without regard to its admissibility under the rules of evidence at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.'" Id. (emphasis added) (citing U.S.S.G. § 6A1.3(a)); see also United States v. Postel, 524 F.Supp.2d 1120, 1126 n. 4 (N.D.Iowa 2006) ("Hearsay evidence remains admissible in sentencing as long as it bears some indicia of reliability." (citing United States v. Morin, 437 F.3d 777, 781 (8th Cir.2006))). Evidence that has "sufficient indicia of reliability," pursuant to U.S.S.G. § 6A1.3, is "`reasonably trustworthy' in light of `the totality of the circumstances.'" See United States v. Romano, 89 Fed.Appx. 335, 336 (3d Cir.2004) (unpublished op.) (citing United States v. Paulino, 996 F.2d 1541, 1548 (3d Cir. 1993)); see also United States v. Erger, 19 F.3d 24, 1994 WL 47875, *2 (8th Cir. Feb. 18, 1994) (per curiam) (unpublished op.) ("[E]vidence is reasonably trustworthy if it has a `sufficient indicia of reliability.'" (quoting United States v. Simmons, 964 F.2d 763, 776 (8th Cir.1992))).
663 F.3d at 364. Therefore, to be clear, a "sentencing court may consider any relevant information," such as information in a DOL Report regarding the investigation of the defendant's criminal conduct, as long as "the information has sufficient indicia of reliability to support its probable accuracy." United States v. Fetlow, 21 F.3d 243, 248 (8th Cir.1994) (emphasis added) (citing United States v. Granados, 962 F.2d 767, 772 (8th Cir.1992)).
Courts have held that information found in investigatory reports meet the standard of having "sufficient indicia of reliability." For instance, in United States v. Mathews, the Eighth Circuit Court of Appeals affirmed a district court's decision to admit the government's laboratory reports at a sentencing hearing where the district court examined and determined that "[the reports] had sufficient indicia of reliability to be admitted for sentencing purposes." 19 F.3d 1438, 1994 WL 95960, *1 (8th Cir. Mar. 25, 1994) (per curiam) (unpublished op.). According to the appellate court, the results in the report "clearly and consistently identified the type of methamphetamine involved, and were contradicted only by [] uncertain testimony [of a co-conspirator and supplier, William Thomas]." Id. For that reason, the appellate court affirmed the district court's decision to admit the government reports at the defendant's sentencing.
Although the Federal Rules of Evidence do not apply at sentencing hearings, FED. R.EVID. 1101(d)(3), it is worth noting that courts have also found Department of Labor reports admissible at trial based on their "trustworthiness" under FRE 803(8).
In this case, numerous aspects of the report demonstrate the report's reliability and trustworthiness. First, the report was timely. The investigation occurred during the years 2008, 2009, and 2010, during which time Bartleson concedes that he embezzled funds from his employees. The report was completed and mailed to the USAO on February 22, 2011. Second, the DOL Report has an additional indicium of reliability in that it was prepared by LeeAnn King (King), a trained investigator of the Employee Benefits Security Administration (EBSA) of the DOL.
Nothing in the record suggests that the DOL Report was not made in the regular course of DOL's investigation, or that she was personally biased or untrustworthy in her investigative tactics. Rather, King was employed by the EBSA at the time she wrote the report. As a trained EBSA investigator, King's job was to ensure the accuracy of her reporting based on the information discovered by her. Therefore, it is reasonable to assume that King had an interest in ensuring that her investigative report was truthful.
Finally, as noted above, Bartleson had the opportunity to "rebut and explain" the DOL Report's factual assertions at his sentencing. See Rodriguez-Ramos, 663 F.3d at 364. However, to the extent Bartleson's objections in his supplemental brief, or the evidence submitted at his sentencing hearing, were meant to weaken the reliability or trustworthiness of the report, I was unpersuaded. Bartleson did not present any evidence to seriously question the veracity of the report.
The key issues I confront below are: (1) whether Bartleson abused a position of private trust under U.S.S.G. § 3B1.3 as an owner and officer of Bartleson Masonry; and (2) whether to order Bartleson to pay restitution for the investment earnings and tax liabilities incurred by the thirteen employees under the MVRA, 18 U.S.C. § 3663A, in addition to the $41,878.22 Bartleson has already paid.
"If a defendant abuses a position of public or private trust in a manner that significantly facilitates his offense, then the Guideline's offense calculation should be increased by two levels." Erhart, 415 F.3d at 972 (citing U.S.S.G. § 3B1.3). "Whether the defendant may occupy a position of trust is a question of law; if so, whether [he] did is a question of fact." United States v. Gilbert, 721 F.3d 1000, 1007 (8th Cir.2013) (quoting United States v. Hayes, 574 F.3d 460, 478 (8th Cir.2009)). "[T]he issue is fact intensive because it turns on the precise relationship between the defendant and her victim and therefore cannot be decided on the basis of generalities such as `lawyers and doctors occupy
The prosecution must prove three facts before the abuse-of-trust enhancement applies: (1) the defendant was in a position of private trust; (2) the defendant abused the position in a manner that significantly facilitated the commission or concealment of the offense; and (3) an abuse of trust is not included in the base offense level or a specific offense characteristic. See United States v. Waldner, 564 F.Supp.2d 911, 936 (N.D.Iowa 2008) (citing U.S.S.G. § 3B1.3) (applied two-level enhancement for abuse of a position of private trust because three facts presented: (1) defendant was CEO and sole owner of company with substantial discretionary judgment and control over company's operations and little to no supervision; (2) defendant used position of private trust to effectuate and conceal payments to insider corporations and his position gave him the authority to move funds and order others to move funds without questioning his illicit motives; and (3) defendant's abuse of trust was not included in the defendant's base offense level or a specific offense characteristic where the defendant pleaded guilty to two counts of making a false statement in relation to a bankruptcy proceeding, in violation of 18 U.S.C. § 152(3)).
The arguments below are drawn from the parties' sentencing memorandums and Bartleson's two briefs objecting to the original and revised PSIR. In Bartleson's brief objecting to the original PSIR, he argues, "There is no factual basis for applying the position-of-trust adjustment in this case." Defendant's Objections To Presentence Report (docket no. 17), 2. Citing to U.S.S.G. § 3B1.1, Bartleson contends that he did not occupy a position of trust in relation to the victims, i.e., the company's employees. Bartleson notes that a position of private trust is "characterized by professional or managerial discretion," and suggests he had no such discretion. Id.
Bartleson argues that he was not appointed to hold any position of trust by the employees of Bartleson Masonry. Rather, he argues that he was a mere "bookkeeper in a small construction company." Id.
Bartleson also argues that his position did not significantly contribute to facilitating the commission or concealment of the offense. Citing to a case written by the Third Circuit Court of Appeals, Bartleson asserts that the abuse-of-trust enhancement "is primarily aimed at positions that provide `freedom to commit a difficult-to-detect wrong.'" Defendant's Objections To Presentence Report at 3 (citing United States v. Lieberman, 971 F.2d 989, 993 (3d Cir.1992)).
In reply, the prosecution contends that Bartleson occupied a position of trust with
It is immaterial, the prosecution suggests, that the employees did not appoint or authorize Bartleson to hold a position of trust. This is because § 3B1.3 only requires that Bartleson occupy a position of trust, not that the victims of the offense "appointed or authorized" him to hold the position. Id. at 4-5. Based on the responsibility Bartleson held at the company and the lack of oversight of Bartleson's actions, the prosecution argues that Bartleson was much more than a mere bookkeeper. Moreover, in his various roles, "no one look[ed] over [Bartleson's] shoulder to ensure he was handling the money." Id. at 5. Because Bartleson was in a position where no one monitored his forwarding of the IRA withholdings, the prosecution argues, "he had the discretion, the ability, to not do so for years without getting caught." Id.
In addition, the prosecution contends that Bartleson's "position of trust significantly facilitated his commission and concealment of the offense of embezzlement." Id. at 6. This is because Bartleson's various positions enabled him to have the opportunity to access and embezzle the IRA funds, and conceal his embezzlement. No employees at the company provided oversight of Bartleson's actions or the company's finances to ensure Bartleson was contributing money to the Plan. Contrary to what Bartleson suggests, the prosecution contends that the abuse-of-trust enhancement does not require a person in a position of private trust "to conceal the offense from everyone, only that it significantly facilitate concealment," which occurred here. Id. at 6-7. Lastly, the prosecution argues that a two-level increase for abuse of a position of trust is not duplicative "because the base offense level in this case does not account for defendant's abuse of his position in the company"; rather, it only accounts for him committing a fraud. Id. at 7.
Any job constitutes a position of trust in some sense, but "the guideline definition requires something more than a mere employment relationship to warrant an upward adjustment." United States v. Brelsford, 982 F.2d 269, 271 (8th Cir.1992). The Commentary to Sentencing Guideline § 3B1.3 defines a position of private trust as a position that is:
U.S.S.G. § 3B1.3, cmt. (n. 1). As noted above, the Eighth Circuit Court of Appeals has explained that "[w]hether a defendant holds a position of trust with respect to a victim ... turns on the nature of the defendant's position and amount of discretion
In Brelsford, the Eighth Circuit Court of Appeals affirmed a district court's decision to increase the defendant's offense level two points for abuse of a position of private trust. 982 F.2d at 272. In that case, the appellate court reasoned that when considering whether a person occupies a position of private trust, "[t]he relevant inquiry under the guidelines is whether trust is inherent to the nature of the position." Id. (citing United States v. Claymore, 978 F.2d 421, 423 (8th Cir.1992)). In reaching the decision that the defendant occupied a position of private trust, the court noted that the defendant "was not an ordinary [bank] teller; she was a [bank] teller supervisor." Id. The defendant monitored other tellers, and the bank trusted the defendant "to review the daily reports, to conduct regular audits, to assign the teller drawers, and to safeguard the keys to idle teller drawers." Id. "The fact that no one looked over her shoulder is itself evidence that she held a position of trust." Id. Thus, the appellate court affirmed the district court's conclusion that the defendant held a position of private trust. Id.
Here, Bartleson was in a position of private trust by virtue of being a co-owner of Bartleson Masonry and serving as Vice President, Secretary, and Treasurer.
In addition, as indicated in the PSIR, Bartleson was only subject to supervision (if at all) by his brother, who was the President of the company.
Bartleson's attempt to analogize his position to that of a "bank teller," merely transferring money to the correct accounts, fails.
Id. It is true that Bartleson's position gave him direct access to large amounts of money, like a bank teller's or hotel clerk's position. However, as Treasurer, Bartleson was in charge of the company's banking and budget preparations, and he had authority to write company checks for payroll, use the company's credit card, and withhold employees' pay for the Plan.
Furthermore, Bartleson was not supervised. His position afforded him substantially more discretion and subjected him to limited oversight, which, as discussed below, contributed in a significant way to facilitating and concealing his embezzlement. For these reasons, Bartleson's case "differs significantly from that of the `ordinary bank teller or hotel clerk' who is subject to penny-for-penny accounting at the end of each day." See United States v. Allen, 201 F.3d 163, 166-67 (2d Cir.2000) (applying abuse of trust enhancement and distinguishing defendant's case from an "ordinary bank teller or hotel clerk" where defendant had markedly similar "`broad responsibilities'" to Bartleson and was not subjected to "regular or direct supervision"); see also Valenti, 60 F.3d at 947 (finding defendant's position, which was akin to Bartleson's position, "bore little resemblance to `the tight accounting controls that restrict a bank teller.'" (quoting United States v. Melendez, 41 F.3d 797, 799 (2d Cir.1994))).
Bartleson's other argument — i.e., he was not in a position of trust because he was not granted discretionary authority or authorized to do anything — is also unpersuasive. 415 F.3d at 972. In Erhart,
As a final point, Baier's analysis of trust and her suggestion that the concept of trust implicates varying degrees of discretion in the philosophical realm is useful when analyzing whether Bartleson occupied a position of private trust in the legal realm. Like the plumber, who is trusted and has discretion in repairing pipes, or the surgeon, who is trusted and has discretion in treating an amendable injury by surgical methods, Bartleson was trusted and had discretion over the employees' funds, the Plan, and the company's finances. Trust at 239. Bartleson decided when and how the business's expenses and distributions to the Plan were paid. If I consider their discretion and supervision (or lack thereof) to be equal,
"Once the sentencing court has determined that a person occupies a position of private trust, `the position of ... trust must have contributed in some significant way to facilitating the commission or concealment of the offense ...' before the enhancement may apply." Waldner, 580 F.3d at 706 (quoting U.S.S.G. § 3B1.3 cmt. (n. 1)). According to the Guidelines' Commentary, a position of trust facilitates the commission or concealment of an offense "[b]y making the detection of the offense or the defendant's responsibility for the offense more difficult." U.S.S.G. § 3B1.3 cmt. (n. 1).
For instance, in Waldner, my colleague, Chief Judge Linda R. Reade, held that a "[d]efendant abused his position of private trust in a manner that significantly facilitated the commission and concealment of his offense." 564 F.Supp.2d at 936. There, the defendant was in a position of private trust as CEO of the company and sole shareholder for a time. "By virtue of his position, Defendant had substantial discretionary judgment." Id. He micromanaged the company's affairs; he told its president, "`You take care of the operation. I'll take care of the money.'" Id. Chief Judge Reade highlighted that the defendant was "subject to little to no supervision,
Likewise, Bartleson's roles — i.e., as a co-owner and officer with responsibilities over the company's finances and payroll — contributed to him facilitating his embezzlement and enabled him to escape detection. He was subjected to little to no supervision over moving the company's finances, handling payroll, or managing the company's books.
The abuses of his position of trust contributed significantly to the facilitation of both the commission and concealment of Bartleson's embezzlement. This is because, with his status in the company, his actions were shrouded with a presumption of regularity not afforded others. See United States v. Post, 25 F.3d 599, 601 (8th Cir.1994) (affirming district court's finding that defendant abused a position of public trust and finding defendant's "status as a licensed attorney shrouded the [fraudulent insurance] claims with a presumption of regularity, and thus contributed significantly to facilitating the commission of the fraud."); see also U.S.S.G. § 3B1.3, cmt. (n. 1). As occurred in Waldner, no one questioned Bartleson's "illicit motives" in his position of authority; he was subjected to significantly less supervision than the non-discretionary employees. See Waldner, 580 F.3d at 706. Bartleson was able to make regular withdrawals from the company's account. He had discretion to use company assets and employees' wages, which were commingled with company assets, to pay for personal and company expenses.
Like Baier's surgeon or plumber, who theoretically have the ability to conceal their mistakes or ill-will "by pretense" that their abuse of trust took place because of "an honest and well-meaning exercise of the discretion given to them," Bartleson concealed his ill-will by the same kind of pretense. Trust at 239-40. Bartleson alleges that he embezzled from the thirteen employees in order to keep the company solvent. To reflect upon Bartleson's excuse for embezzling from his employees elucidates the "special vulnerability" that, according to Baier, accompanies trust: "[V]ulnerability to not yet noticed harm, or to disguised ill will." Trust at 239.
For the sake of argument, consider Bartleson's claim that Bartleson Masonry employees "had access to their IRA accounts," and the employees "could presumably see on IRA statements whether contributions were being made." The gravamen of Bartleson's contention is that his position did not make the detection of or responsibility for the crime more difficult to detect. I disagree with him on two grounds.
First, the record does not support Bartleson's claim that his crime was uncovered by employees. No evidence, at least to which I am made aware by Bartleson, supports the argument that employees could easily detect when contributions were made (or not made) to the Plan. Instead, the DOL Report makes this point clear: one employee, Jason Thompson, discovered Bartleson's criminal conduct, which initiated the DOL's investigation on March 10, 2008. DOL Report at 7. Thus, Bartleson's claim that his embezzlement was not a "difficult-to-detect" crime is negated by the facts.
Second, even if it were the case that the employees had the chance to detect when contributions were made to the Plan, the fact that Bartleson was able to withhold money from thirteen employees in 2006, 2007, and 2008 before getting caught, contradicts any suggestion that the employees were regularly watching the contributions
Similar to the defendant in Lieberman, Bartleson's position of trust contributed to the commission and concealment of his embezzlement, and he was placed in a position to commit a "difficult-to-detect wrong." Id. at 994. If the employees had examined Bartleson's withholdings and transfers of their funds to the Plan more closely, it is likely that Bartleson's embezzlement would have been discovered sooner. See Erhart, 415 F.3d at 972 ("If the insurance companies had exercised more control over [the defendant], then it is likely the fraud would have been discovered. This fraud continued as it did precisely because the insurance companies trusted [the defendant] and the accuracy of the claims that he supplied them."). Therefore, like the defendant in Lieberman, Bartleson occupied a position of trust at Bartleson Masonry within the meaning of U.S.S.G. § 3B1.3, and his position of trust contributed in a substantial way to facilitating and concealing his embezzlement from thirteen employees.
The enhancement for abuse of trust "may not be employed if an abuse of trust ... is included in the base offense level or specific offense characteristic." U.S.S.G. § 3B1.3 (emphasis added); see also Waldner, 580 F.3d at 707 ("`[S]entencing courts err when precisely the same aspect of a defendant's conduct factors into his sentence in two separate ways.'" (quoting United States v. Smith, 516 F.3d 473, 476 (6th Cir.2008))); United States v. Levy, 992 F.2d 1081, 1084 (10th Cir.1993). Citing to Waldner, 580 F.3d at 707, Bartleson argues that "the position of trust enhancement cannot apply to [him] because it would be duplicative with the base offense level." Defendant's Objections To Presentence Report at 3. According to Bartleson, all defendants convicted of embezzlement under 18 U.S.C. § 664 will occupy a position of trust. "[I]t is inconceivable that a defendant convicted of embezzlement under § 664 would not qualify for a position of trust enhancement." Id. Because Bartleson's "base offense level already accounts for the nature of his relationship with the victims," Bartleson argues that applying the abuse-of-trust enhancement is "improperly duplicative."
I do not agree. Double counting did not occur here. As directed by U.S.S.G. § 3B1.3, I considered the base offense level and specific offense characteristics assigned by the guidelines to the crime of conviction. Bartleson was convicted of embezzlement in violation of 18 U.S.C. § 664, assessed a base offense level under U.S.S.G. § 2B1.1(a)(2),
Bartleson's base offense level of six under U.S.S.G. § 2B1.1(a)(2) does not take into account an abuse of trust.
Finally, "[w]hile embezzlers like [Bartleson] may indeed breach a duty of trust by fraudulently appropriating the property of another ... an abuse of trust under the Guidelines requires something more." See United States v. Georgiadis, 933 F.2d 1219, 1227 (3d Cir.1991) (finding an abuse of a position of trust is not an element of embezzlement). Consider the decision of the Ninth Circuit Court of Appeals in United States v. Christiansen, where it affirmed the sentence and abuse-of-trust enhancement for the defendant who was convicted of embezzlement under 18 U.S.C. § 657. 958 F.2d 285, 287 (9th Cir. 1992). On appeal, the defendant argued that "because embezzlement involves a breach of trust, the enhancement should not be applied." Id. In reaching its decision, the Ninth Circuit Court of Appeals was influenced by the Third Circuit Court of Appeals in Georgiadis, 933 F.2d at 1225. Id. Taking guidance from its sister circuit, the Ninth Circuit Court of Appeals put forth this explanation for why it could apply the enhancement to an embezzler:
Christiansen, 958 F.2d at 287-88 (emphasis added).
Therefore, contrary to Bartleson's assertion, it is conceivable that a defendant can be charged under 18 U.S.C. § 664 and not be in a position of private trust. Hypothetically, a low-level employee of Bartleson Masonry, who is heavily supervised and has far less managerial discretion than Bartleson, could commit the same offense under 18 U.S.C. § 664 and not be in a position of private trust. This hypothetical serves to illustrate that the abuse-of-trust enhancement and the underlying offense of embezzlement penalize distinct aspects of Bartleson's criminal conduct and distinct harms. See Waldner, 580 F.3d at 707 (noting that difference between the abuse-of-trust enhancement and an underlying offense of making false statements in relation to a bankruptcy proceeding). For the reasons above, at his sentencing, Bartleson's offense level was increased two points pursuant to U.S.S.G. § 3B1.3.
Note 5 of the Commentary for the Sentencing Guidelines under U.S.S.G. § 3B1.3 contains additional illustrations of an abuse of trust and the operation of the guidelines with respect to embezzlement from employee pensions. See U.S.S.G. § 3B1.3 (n. 5). Note 5 reads, in pertinent part:
U.S.S.G. § 3B1.3 (n. 5(A)) (emphasis added). The prosecution points to the examples referenced in Note 5 and implies that they apply here. However, the prosecution does not explicitly draw out the implication, advance the implication to the next analytical step, or develop this argument in writing.
In Bartleson's reply brief to the prosecution's sentencing memorandum, he criticizes the prosecution's reference to Note 5 of the Commentary: "The government's invocation of fiduciary status under ERISA is misplaced and actually supports Mr. Bartleson's argument."
With regard to the first clause of Note 5 (i.e., "the offense involved ... embezzlement from an employee pension ... benefit plan"), the Commentary does not define "employee pension benefit plan." However, Note 5 of the Commentary refers to 29 U.S.C. § 1002(21)(A) for the purpose of defining a "[f]iduciary of the benefit plan," and that code section also defines "employee pension benefit plan." See 29 U.S.C. § 1002. ERISA defines "employee benefit plan" as including both "an employee welfare benefit plan," or "an employee pension benefit plan," or both. "An employee pension benefit plan" is defined as
29 U.S.C. § 1002(2)(A) (emphasis added).
For example, in Holdbrook v. California Federal Bank, the federal district court for the Northern District of Texas determined that an employer retirement plan was an ERISA "employee pension benefit plan." 905 F.Supp. 367, 370 (N.D.Texas 1995).
Here, the SIMPLE IRA Plan is an ERISA "employee pension benefit plan." This is because the Plan was established and maintained by an "employer." See 29 U.S.C. § 1002(5) (defining an "employer" as "any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan; and includes a group or association of employers acting for an employer in such capacity."). Looking to the definition of an employee pension benefit plan under 29 U.S.C. § 1002(2)(A), the Plan was intended to give "retirement income to employees" and "result[ed] in a deferral of income by employees for periods extending to the termination of covered employment or beyond[.]" 29 U.S.C. § 1002(2)(A). Therefore, the SIMPLE IRA Plan in this
Considering the factors put forth in Holdbrook, the employees were the "intended beneficiaries," and the "source of the income" was based on "a deferral of income" and consisted of "contributions" from the employees and the employer. See Holdbrook, 905 F.Supp. at 370; see also Altshuler v. Animal Hospitals, Ltd., 901 F.Supp.2d 269, 278 (D.Mass.2012) (defendant employer withheld contributions to the plaintiff employee's SIMPLE IRA and the employee's SIMPLE IRA was an "employee benefit plan" within the scope of ERISA); Fasco Industries, Inc. v. Mack, 843 F.Supp. 1252, 1255 (N.D.Ill.1994) (finding a Supplemental Executive Retirement Plan (SERP) to be an "employee pension benefit plan" based on the factors articulated under 29 U.S.C. § 1002(2)(A)). Thus, the SIMPLE IRA Plan is an "employee pension benefit plan" based on the definition under 29 U.S.C. § 1002(2)(A) and Holdbrook.
It is important to note that the definition portion of ERISA on "[e]mployee pension benefit plan" excludes some IRAs and includes other IRAs within the scope of ERISA. See 29 C.F.R. § 2510.3-2(d)(1).
29 C.F.R. § 2510.3-2(d)(1)(i)-(iv) (emphasis added).
Analyzing 29 C.F.R. § 2510.3-2(d), the Ninth Circuit Court of Appeals explained in Cline v. Indus. Maint. Eng'g & Contracting Co. that
200 F.3d at 1229 (emphasis added). Therefore, based on the analysis of the Ninth Circuit Court of Appeal of 29 C.F.R. § 2510.3-2(d), the court concluded that the IRA plan at issue was an "employee pension benefit plan." Id.
In this case, the SIMPLE IRA Plan does not meet the four requirements listed under 29 C.F.R. § 2510.3-2(d)(1) because the parties agree that contributions to the Plan were made by Bartleson Masonry and the employees, and the employer was involved by collecting contributions through the payroll deductions of the employees. See 29 C.F.R. § 2510.3-2(d)(1); see also DeBasio, 1998 WL 546127 at *2 (noting that "a particular IRA may or may not be an `employee pension benefit plan'" and "[t]he determining factor will be the role, if any, played by the employer"); 29 C.F.R. § 2510.3-2(d) (certain IRAs deemed not to be an "employee pension benefit plan" where there are no employer contributions and limited employer involvement). Because the SIMPLE IRA Plan in this case failed to meet requirements under § 2510.3-2(d)(1), the Plan is an "employee pension benefit plan" for purposes of ERISA, and is not expressly excluded by ERISA. Cline, 200 F.3d at 1229.
As an alternative means of interpreting the term "employee pension benefit plan," I refer to the statute under which Bartleson is charged, i.e., 18 U.S.C. § 664. That statute provides in relevant part that "[a]ny person who embezzles ... assets of any ... employee pension benefit plan ... shall be fined under this title, or imprisoned not more than five years, or both." 18 U.S.C. § 664. The statute continues: "`Any ... employee pension benefit plan' means any employee benefit plan subject to any provision of title I of the Employee Retirement Income Security Act of 1974." Id. Putting aside my analysis, above, as to whether the Plan falls under the ambit of ERISA, Bartleson's Plea Agreement, which he initiated and signed, indicates that "[t]he Plan was subject to Title I of the Employee Retirement Income Security Act of 1974 (`ERISA')." Plea Agreement (docket no. 6-1) ¶ 7(b). Therefore, the SIMPLE IRA Plan in this case is an "employee pension benefit plan" under the charging statute. See 18 U.S.C. § 664.
With regards to the second clause of Note 5 (i.e., "the defendant was a fiduciary of the benefit plan"), the Commentary refers to the definition of a "[f]iduciary of the benefit plan" under 29 U.S.C. § 1002(21)(A). That definition includes several alternative definitions of a "fiduciary," such as anyone who (1) "exercises any discretionary authority or control in respect to the management of such plan or exercises authority or control in respect to
In reference to the definitions of "fiduciary" under the guidelines, Bartleson falls under the first definition: he exercised discretionary authority and control in respect to the management of the Plan and exercised authority and control in respect to the management and disposition of the Plan's assets. In his roles as co-owner, Vice President, Secretary, and Treasurer, Bartleson had authority over the company's payroll, and he calculated the appropriate withholdings to employees' retirement plans and completed a summary form as to the Plan. He was given considerable deference in performing these tasks and subjected to no supervision. He used that position to facilitate stealing money from his employees. Instead of forwarding money to American Funds on a monthly basis, he deposited the employees' withdrawals in Bartleson Masonry's bank account. He then spent the funds on company and personal expenses. His authority to draw off that account, which included company revenue and employee withdrawals for the Plan, suggests significant managerial discretion. Thus, Bartleson fits the definition of a "fiduciary" under Note 5 vis-à-vis the Plan.
However, even if I assume, arguendo, that Bartleson does not fit one of the definitions of a "fiduciary" under Note 5 of the Commentary to the Sentencing Guidelines, the abuse-of-trust enhancement still applies based on my analysis above. See Septon, 557 F.3d at 937-38 ("We have also held there can be an abuse of a position of trust even in the absence of a traditional fiduciary relationship between a defendant and a victim."). This is based on my three-factor analysis as to why the enhancement applies here: (1) Bartleson held a position of private trust, (2) his abuse of that position significantly contributed to the commission and concealment of the charged offense, and (3) an abuse of trust is not included in Bartleson's base offense level or specific offense characteristic.
Bartleson's reliance on certain cases in furtherance of the argument that Note 5 does not apply, such as Fraser v. Fiduciary Trust Co. Int'l, 417 F.Supp.2d 310, 321 (S.D.N.Y.2006) and Finkel v. Romanowicz, 577 F.3d 79, 86-87 (2d Cir.2009), is misplaced. Defendant's Reply To Government's Memorandum Regarding Sentencing at 3. For example, Bartleson relies on Fraser for the proposition that "a defendant's role as an executive of an employing company is, standing alone, insufficient to confer fiduciary status." Id. (emphasis added) (citing Fraser, 417 F.Supp.2d at 321). However desperately Bartleson clings to this proposition, it does not detract from the conceded facts that Bartleson was not an executive of the employing company standing alone. Rather, Bartleson's various roles — as a co-owner, Vice President, Secretary, and Treasurer, his handling of payroll, his signatory authority over the company's bank account, and his handling of the employees' funds for the Plan — placed him in an unreviewable position of power. He also had significant managerial discretion over his employees' funds and the company's finances.
Additionally, Bartleson cites to Finkel for its holding that it is insufficient to establish a principal as an ERISA fiduciary, where the principal of an employer
At first glance, Finkel appears to favor Bartleson's position. There, the defendant was alleged to have withheld employees' elective contributions to a 401(k) Plan and the funds were maintained by the company for the benefit of the defendant and the company instead of being remitted to the 401(k) Plan. Like Bartleson, the defendant in Finkel, by virtue of his position as an officer at a company, "exercised control over [the company's] assets, including the general assets with which withheld contributions [for the 401(k) Plan] [were] commingled." Id. at 85. In addition, the defendant did not inform employees that he had "failed and refused to remit the withheld contributions" from the employees' retirement accounts. Id.
However, in Finkel, as the Second Circuit Court of Appeals explained, the reason the Joint Board's claim that the defendant was a "fiduciary" under 29 U.S.C. § 1002(21)(A) failed at the district court level was because the Joint Board did not allege:
Id. at 85-86.
By contrast, here, the prosecution has alleged (and proven) that, as Treasurer, Bartleson engaged in activities that made him a fiduciary under § 1002(21)(A)(i)'s definition. Unlike the defendant in Finkel, Bartleson was responsible for making the decisions as to the corporate disbursements and determining which of the company's creditors or corporate expenses were paid and in what order. He also exercised his authority as Treasurer by managing the money from the withheld employee contributions. He decided to keep the company financially afloat by paying certain creditors, to pay back the Internal Revenue Service for money owed by the company, and to use employees' wages for personal expenses. Also distinct from the defendant in Finkel, Bartleson had the authority to use the commingled funds — i.e., the company's funds and the withheld employees' wages — for general corporate purposes. He was in charge of both the financing for the company and managing and disposing of the Plan's assets to American Funds.
This case is more analogous to United States v. Pavcovich, 92 Fed.Appx. 259, 261 (6th Cir.2004). There, the Sixth Circuit Court of Appeals held that "a preponderance of the evidence show[ed] that [the defendant, the Assistant Vice President in the retail loss prevention department] held a fiduciary or trust-like relationship to a bank." Id. As the Sixth Circuit Court of Appeals explained,
Id. at 260-61 (emphasis added). In reaching its decision that a preponderance of the evidence showed the defendant held a "fiduciary or trust-like relationship to the bank," the appellate court was persuaded by these facts: the defendant (1) "oversaw the daily operations of his department," (2) "was responsible for the agency and out-sourcing of accounts," and (3) "enjoyed a substantial amount of managerial discretion over his department." Id. at 261. The appellate court affirmed the district court's decision to apply the abuse-of-trust enhancement. Id.
Similarly, like the defendant in Pavcovich, Bartleson not only handled and "oversaw" the company's operations and assets as Treasurer, but he also had "a substantial amount of managerial discretion" over the company's finances in regards to the Plan. Id. The employees of Bartleson Masonry relied on Bartleson to act in their best interest. He alone was responsible for forwarding their contributions to the Plan. Bartleson would not have been in the position of managing the Plan if he were not trusted by the employees to properly remit the employees' wages to American Funds. Instead, Bartleson converted the employees' funds for purposes other than funding the Plan.
The facts of this case are actually more aggravating than Pavcovich because, unlike the defendant in Pavcovich, Bartleson was not one among many vice presidents at the company. Bartleson and his brother were the only owners and officers of the company. In their capacities, they had
For the reasons discussed above, I find that the SIMPLE IRA Plan falls under the category of an "employee pension benefit plan" under clause 1 of Note 5. In addition, I find that Bartleson engaged in, and had authority to engage in, activities that made him a "fiduciary of the benefit plan" under clause 2 of Note 5. See LoPresti, 126 F.3d at 40 ("As this Court has recognized, Congress intended ERISA's definition of fiduciary `to be broadly construed.'" (quoting Blatt v. Marshall & Lassman, 812 F.2d 810, 812 (2d Cir. 1987))). Thus, I find that the two-level enhancement for abuse of a position of trust applies in this case based on my analysis of the three-factor legal standard for an abuse-of-trust enhancement discussed in Sections C1 to C3 above and my analysis of Note 5 in Section C4. See U.S.S.G. § 3B1.3 (n. 5(A)).
Interestingly, this is the second case in the last few months in which I have determined what is considered the "full amount" of a victim's losses for restitution purposes. See United States v. Weimer, 63 F.Supp.3d 922, 931-32, 2014 WL 6680892, *7 (N.D.Iowa November 25, 2014). "The Mandatory Victims Restitution Act (MVRA) requires a sentencing court to order a defendant to make restitution to the victim of the offense in the full amount of the victim's loss without consideration of the defendant's ability to pay." Erhart, 415 F.3d at 973 (citing 18 U.S.C. § 3664(f)(1)(A)); see also United States v. Ruff, 420 F.3d 772, 774 (8th Cir.2005) (citing 18 U.S.C. § 3664(f)(1)(A)). "Prior to the MVRA, sentencing courts were required to make a finding regarding a defendant's ability to pay." Id. Moreover, under the MVRA's predecessor — the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663 — district courts are required to consider the defendant's financial resources, and the granting of restitution is discretionary. See United States v. Gordon, 393 F.3d 1044, 1048 (9th Cir.2004). "In 1996, Congress supplemented the VWPA by enacting the MVRA, 18 U.S.C. § 3663A, which requires the imposition of full restitution, without consideration of the defendant's economic condition, for crimes of violence and property offenses, including any offense committed by fraud or deceit." United States v. Curran, 460 Fed.Appx. 722, 724 (9th Cir.2011) (citing United States v. De La Fuente, 353 F.3d 766, 769 (9th Cir.2003); 18 U.S.C. § 3664(f)(1)(A)).
In this case, Bartleson's crime "plainly falls within the mandatory restitution requirement
Because the MVRA applies in this case, I was required to "order restitution to each victim in the full amount of each victim's losses ... without consideration of the economic circumstances of the defendant." See 18 U.S.C. § 3664(f)(1)(A); see also Curran, 460 Fed.Appx. at 724 (affirming district court's decision to apply the MVRA, and not consider defendant's financial condition, in order to determine defendant's restitution where defendant pleaded guilty to two counts of theft from an employee retirement plan, in violation of 18 U.S.C. § 664, and to two counts of filing false forms, in violation of title I of ERISA, 18 U.S.C. § 1027). Regarding the appropriate amount of restitution, the MVRA provides, in pertinent part, that a defendant shall pay to the victim an amount that is equal to:
18 U.S.C. § 3663A(b)(1)(B)(i). In calculating restitution, the MVRA does not permit "[s]peculation and rough justice." United States v. Anderson, 741 F.3d 938, 954 (9th Cir.2013). However, "exact precision is not required and district courts have a degree of flexibility in accounting for a victim's complete losses; thus, a `reasonable estimate' will suffice." Id. (emphasis added) (citation omitted).
A case arising out of the Second Circuit Court of Appeals, United States v. Scott, assisted me in addressing the specific issue of whether to include the thirteen victims' lost investment returns in Bartleson's restitution order. 321 Fed.Appx. 71, 72 (2d Cir.2009). There, the Second Circuit Court of Appeals affirmed the district court's decision that the amount of restitution under the MVRA may include the victims' lost investment earnings on assets lost as a result of the defendant's criminal conduct. In Scott, the defendant "stole his clients' assets from three retirement accounts," and "[h]ad the assets remained in those accounts, two of the three accounts would have increased in value by the date
In this case, in his plea agreement, Bartleson stipulated to pay restitution in the amount of $41,878.22, which equals the total amount of the employees' original investments, but does not include investment returns, or the tax liabilities the employees incurred for the 2007 tax year. At the time Bartleson signed his plea agreement, he tendered a check to the USAO for that entire restitution amount. However, as the parties are well aware, I found that figure dramatically undervalued the amount of money that Bartleson embezzled from his employees, because it failed to approximate the employees' lost investment income or tax liabilities.
Based on Scott and the standard for calculating a restitution award under the MVRA, I found it appropriate to include the employees' lost investment earnings in the restitution order. Scott, 321 Fed. Appx. at 72. To make a "reasonable estimate" as to the victims' actual losses, which includes the amount of lost investment income from the Plan, I used the Standard & Poor's 500 Stock Index (S & P 500) to calculate the appropriate returns.
Furthermore, I calculated the employees' intended gains on their investments
In addition, I added to the restitution amount the additional taxes that the employees were forced to pay because Bartleson failed to report the employee contributions as deferred income in 2007. Specifically, here is what is alleged in the PSIR: "Also, for 2007, the defendant failed to report the employee contributions as deferred income. Therefore, not only were the employees' contributions not forwarded to their IRA plans, they were considered earned income for tax purposes." PSIR ¶ 7. Similarly, the DOL Report alleges: "[T]he Bartlesons withheld $11,984.28 in [sic] from the paychecks of their employees intended for Plan year 2007 and failed to report the withholdings as deferred income nor identify the Plan
My calculations assume that the employees paid too much on their taxes as Bartleson overstated taxable earnings for his employees in 2007. If Bartleson reported the withheld funds as funds designated for the Plan, the employees' tax liabilities would have been reduced.
Stephen Bartleson's and Anthony Bartleson's W-2's for 2007 show wages of $38,500.00. See DOL Report at 8. Therefore, Bartleson, unless he filed his taxes separately from his wife, would have fallen under the 15% tax bracket for the 2007 taxable year.
To determine Bartleson's total restitution amount, I added the following: (1) what the employees would have made in investment income if their funds were invested based on the S & P 500 (i.e., $19,640.57); (2) what the employees originally intended to contribute to the Plan based on the periodic withdrawals from their wages (i.e., $41,878.22, as set forth in the DOL Report and Bartleson's plea agreement);
Although I am not permitted to consider Bartleson's financial condition when imposing restitution under the MVRA, I am required to consider Bartleson's financial condition when fashioning a payment schedule for restitution pursuant to the new restitution act. See 18 U.S.C. § 3664(f)(2); see also Weimer, 63 F.Supp.3d at 941, 2014 WL 6680892 at *14 ("Although a defendant's economic circumstances are not relevant to the determination of the amount of restitution, they are relevant to the manner of payment of restitution." (quoting Miell, 744 F.Supp.2d at 969)). I analyze the factors set forth under 18 U.S.C. § 3664(f)(2) to determine Bartleson's payment schedule for restitution, such as "the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled"; "projected earnings and other income of the defendant"; and "any financial obligations of the defendant, including obligations to dependents." 18 U.S.C. § 3664(f)(2) (noting that a court's restitution order may direct the defendant to make a lump-sum payment or periodic payments). The facts below are drawn largely from the parties' briefs regarding Bartleson's ability to pay a fine.
First, as to Bartleson's assets, I find that Bartleson has the financial resources from which to pay restitution. According to Bartleson's PSIR, his total net worth is $98,500.00. PSIR ¶ 44. The report provides that he has $206,00.00 in assets and $107,500.00 in liabilities.
Second, as to Bartleson's future projected cash flow, Bartleson's monthly income consists of $5,150.00. Bartleson will be serving a term of probation. This will enable him to continue to earn money in order to pay his restitution order.
Third, as to Bartleson's financial obligations, the present financial obligations that Bartleson confronts do not concern a dependent. Cf. Weimer, 63 F.Supp.3d at 942, 2014 WL 6680892 at *15 ("[T]he present financial obligations that Weimer confronts concern a dependent. Weimer takes care of her 38 year old son, Danny Koenig, who has cerebral palsy."). I am also unaware of any other obligations, such as a civil suit or administrative action, that would stand in the way of restitution by giving the employees of Bartleson Masonry double recovery or a windfall. See United States v. Louper-Morris, 672 F.3d 539, 566 (8th Cir.2012) ("[T]he MVRA does not allow victims to obtain double recovery or a windfall through restitution." (citing United States v. Frazier, 651 F.3d 899, 910-11 (8th Cir.2011); Ruff, 420 F.3d at 775)).
In sum, I ordered payment of restitution in the additional amount of $20,838.99-that is, in addition to the $41,878.22 that Bartleson already paid to the government. Based on my analysis above, Bartleson's restitution amount shall be paid in one lump sum. See 18 U.S.C. § 3664(f)(3)(A) (authorizing, inter alia, lump-sum payment of restitution). My decision to schedule payment in this manner is based on Bartleson's cash on hand, the value of his properties, and his net income.
Bartleson's embezzlement scheme occurred over a three-year period. His abuse of trust grew out of his position as co-owner, Vice President, Secretary, and Treasurer. He was able to facilitate and conceal his criminal conduct by way of his various positions. "[T]he `primary concern' of the [abuse-of-trust] enhancement is to deter and punish defendants who use the discretion and autonomy provided to them by virtue of their positions to commit or conceal wrongs that are difficult to detect." United States v. Ghertler, 605 F.3d 1256, 1266 (11th Cir.2010) (quoting Garrison, 133 F.3d at 838). "The concern behind the `abuse of a position of trust' enhancement focuses on the relationship between the defendant and his victims." United States v. Reetz, 18 F.3d 595, 600 (8th Cir.1994).
In his position of trust, in which he operated with little to no oversight, Bartleson abused discretionary authority entrusted to him by his employees. He took advantage of what Annette Baier referred to as the employees' "accepted vulnerability," which makes him "`more culpable.'" See Trust at 235; see also Ghertler, 605 F.3d at 1266. Thus, in my judgment, Bartleson deserves some penalty for his actions. See Ghertler, 605 F.3d at 1266 (opining that "persons who abuse authority entrusted to them by others are simply `more culpable,' and thus deserving of harsher penalties.");
In sum, at Bartleson's sentencing, I found that the two-level upward adjustment for abuse of a position of trust was warranted. I applied the enhancement based on my findings that (1) Bartleson was in a position of private trust; (2) he abused his employees' trust for the specific purpose of facilitating the commission and concealment of his embezzlement; and (3) an abuse of trust is not included in Bartleson's base offense level or a specific offense characteristic. Waldner, 564 F.Supp.2d at 936. In addition, as explained above, I also find that Note 5 of the Commentary under Sentencing Guideline U.S.S.G. § 3B1.3 applies because the plan qualifies as an "employee pension benefit plan," and Bartleson served as a "fiduciary" under Note 5 vis-à-vis the Plan.
After all applicable adjustments and departures, and after considering the factors under 18 U.S.C. § 3553(a), I found that a sentence of probation for two years is appropriate for all of the reasons explained in open court during the sentencing. Bartleson's allocution demonstrated genuine and sincere remorse. He truly took full responsibility for his misdeeds and displayed unsurpassed candor in explaining
Tann, 532 F.3d at 875-76. In remanding the district court's decision, the appellate court reasoned that Tann was distinct from Becraft, a case where the appellate court affirmed the district court's application of the abuse-of-trust enhancement. Id. at 878. This is because the district court in Becraft found 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. (quoting United States v. Becraft, 117 F.3d 1450, 1452-53 (8th Cir.1997)). The appellate court continued: "In other words, the defendant exercised managerial discretion-she decided what to buy for the organization-and was able to perpetrate her fraud because her supervisor deferred to her judgment." Id.
U.S.S.G. § 3B1.3 cmt. background; see also United States v. Garrison, 133 F.3d 831, 839 n. 18 (11th Cir.1998) ("Where an individual makes himself particularly vulnerable by entrusting another with substantial authority and discretion to act on his behalf and then relies upon and defers to that person, a decision to take advantage of that trust and vulnerability is particularly abhorrent, as it undermines faith in one's fellow man in a way that the ordinary pickpocket simply cannot." (quoting United States v. Ragland, 72 F.3d 500, 502-03 (6th Cir.1996))).
U.S.S.G. § 3B1.3.
18 U.S.C. § 664.
PSIR ¶ 18. When interviewed by a DOL investigator on April 2, 2008, Bartleson's brother was "unaware of his own IRA balance and hadn't looked at his personal account in a long time." DOL Report at 7.
DOL Report at 11.
U.S.S.G. § 2B1.1.
Plea Agreement ¶ 17 (emphasis added).
Id. at 679 (emphasis added). In In re Burghoff, a case not involving pension plans, Judge Kilburg decided to apply the S & P 500's "total return" version of the index — "which assumes dividends and capital gains are reinvested as they accrue" — because the plaintiffs did not receive dividend payments. Id. As explained below, attempting to account for the dividend payments for the employees, without accounting for brokerage fees and expenses, would overstate the employees' returns, and investments in pension plans are often matched with the S & P 500 because it is the "most accurate reflection of the U.S. stock market today." The S & P 500 Index, WELLS FARGO INVESTING BASICS, http://www. wellsfargoadvantagefunds.com/wfweb/wf/ education/101/markets/sandp500.jsp (last visited: December 23, 2014) ("Many consider the S & P 500 the most accurate reflection of the U.S. stock market today. This high regard has led many money managers and pension plan administrators to use it as a benchmark for judging the overall performance of their fund against the stock market.") (emphasis added).
