United States v. Huber , 45 F. App'x 193 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
8-15-2002
USA v. Huber
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-1258
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1258
UNITED STATES OF AMERICA
v.
MARA HUBER
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 01-cr-00071)
District Judge: Honorable Maurice B. Cohill, Jr.
Submitted Under Third Circuit LAR 34.1(a)
August 2, 2002
Before: ROTH, RENDELL and AMBRO, Circuit Judges
(Opinion filed August 15, 2002)
OPINION
AMBRO, Circuit Judge
Appellant Mara Huber appeals her sentence entered after a plea of guilty for mail
fraud, and aiding and abetting, in violation of 18 U.S.C. 2 and 1341. Huber contends
that the District Court erred in applying an abuse of position of trust enhancement under
U.S.S.G. 3B1.3. She claims that she did not occupy a position of trust because she had
no managerial or professional discretion and her crime was easily discoverable. She also
claims that if she did hold a position of trust, she did not abuse her position. After
reviewing Huber’s claims, we affirm her sentence.
I.
Section 3B1.3 of the Sentencing Guidelines provides in part that "if the defendant
abused a position of public or private trust . . . in a manner that significantly facilitated
the commission or concealment of the offense, increase by two levels." U.S.S.G. 3B1.3
(2001). The enhancement only applies if Huber A) occupied a position of public or
private trust, and B) abused this position in a way that significantly facilitated her crime.
United States v. Iannone, 184 F.3d 214, 222 (1999). Whether Huber occupied a
position of trust is a legal question that is reviewed de novo. Whether she abused that
position is a factual question that we review for clear error. Id.A. Whether Huber Held a Position of Trust
A position of trust is "characterized by professional or managerial discretion (i.e.,
substantial discretionary judgment that is ordinarily given considerable deference)."
U.S.S.G. 3B1.3, cmt. n.1. "Persons holding such positions ordinarily are subject to
significantly less supervision than employees whose responsibilities are primarily
nondiscretionary in nature." Id.Our Court has established a three-prong test to determine whether a position is
one of trust for the purposes of 3B1.3: "(1) whether the position allows the defendant
to commit a difficult-to-detect wrong; (2) the degree of authority which the position
vests in defendant vis-a-vis the object of the wrongful act; (3) whether there has been
reliance on the integrity of the person occupying the position." United States v. Pardo,
25 F.3d 1187, 1192 (3d Cir. 1994).
Huber argues that the fraud she committed was not difficult to detect. She states
that the only reason it was not detected was that her supervisor did not review invoices or
credit card statements. She also supports her argument by pointing out that her fraud
was discovered in only eight months.
Huber misapprehends this inquiry. Our Court has stated that the first prong of the
Pardo test is not a due-diligence requirement. Iannone, 184 F.3d at 224. "The focus of
the first Pardo prong is on the defendant, not on his victims." Id. As established by the
District Court, Huber’s position allowed her to commit a fraud that was difficult to detect
in that she used company credit cards and checks with little or no supervision, she kept
her door and filing cabinets locked, and while on vacation she instructed a co-worker to
hold the mail while she was away. We therefore conclude that she meets the first prong
of the Pardo test.
Huber states that she did not hold a position that gave her professional or
managerial discretion. However, the fact that she could write checks, and request and
use credit cards with little or no supervision, suggests that she did indeed have
discretionary judgment in her job. We therefore reject this argument as well, and find
that she meets the second prong of the Pardo test.
Huber claims that her supervisor did not rely on her integrity. She believes that he
relied on that of her predecessor, and treated Huber in the same way because he had
developed the habit. She suggests that his lack of supervision was unreasonable because
he did not know her and because she had no accounting background. United States v.
Craddock, 993 F.2d 338 (3d Cir. 1993), states that a person has been placed in a position
of trust
when, by virtue of the authority conferred by the employer and the lack of
controls imposed on that authority, he is able to commit an offense that is
not readily discoverable. In such circumstances, the employer, by choice
or necessity, is relying primarily on the integrity of the employee to
safeguard against the loss occasioned by the offense.
Craddock, 993 F.2d at 342 (emphasis added). This passage suggests that it is not
important to determine whether the employer needed to rely on the integrity of his
employee, or whether it was reasonable for him to do so. We find that Huber’s
supervisor relied on her integrity, and therefore reject her argument. She satisfies all
three prongs of the Pardo test, which means that her position was indeed one of trust.
B. Whether Huber Abused her Position of Trust
Huber alternatively argues that if she did hold a position of trust, she did not
abuse it in a way that significantly facilitated the commission or concealment of her
crime. The District Court stated that Huber abused her position by instructing an
employee to hold the mail while she was gone, implying that she tried to keep her
supervisor from looking at statements or bills that would have revealed her fraud.
Additionally, the Court determined that Huber locked her office and office cabinets so
that no one would have access to her files. Accordingly, we hold that the District Court
did not clearly err in finding that Huber abused her position of trust.
III. Conclusion
For these reasons, we affirm the judgment of the District Court.
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Thomas L. Ambro
Circuit Judg