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UNITED STATES v. ARRINGTON

May 29, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
LAMONT ARRINGTON, Defendant


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 One flaw that certainly cannot be ascribed to the United States Attorney's office in such mail theft prosecutions against postal employees is that of inconsistency. All the judges in this District continue to get arguments for a two-level increase in the Guideline calculations for "abuse of trust," even though this Court and its colleagues have regularly continued to reject that position. It is the unanimous view of all participants in the Sentencing Council in this District *fn1" that the United States Attorney's position urging such an across-the-board increase distorts the meaning of the "abuse of trust" concept. *fn2" If the prosecutors feel so keenly on the issue, the thing for them to do is to appeal an adverse ruling. If our Court of Appeals then wishes to give its imprimatur to what has generally been perceived at the District Court level as a distortion of the relevant statute and Guidelines, in the best traditions of judicial responsibility the District Judges will certainly subside from their position -- however universally it may have been shared.

 But rather than simply expressing such a reaction in conclusory terms, this opinion is being issued in the hope -- perhaps forlorn -- that the prosecutorial branch is educable on the subject. For this purpose it will be assumed arguendo that work in the postal system is instinct with the "public trust" -- though it might be suggested that in the sense of that term as it is sought to be used by the government, virtually every governmental employee is vested with the "public trust" to a greater or lesser degree. Whether people are occupied as postal employees or at any other level of the executive branch (including work as prosecutors), *fn3" the common employer is the disembodied entity known as the United States; and conceptually the duties of all government employees might be said to run to all the members of the public, who collectively make up that disembodied entity. But in any case the portion of the government's memorandum in the current case that argues in favor of the "public trust" concept for postal employees will be viewed as accepted for the sake of argument for current purposes.

 As always, it is best to begin by looking at the relevant language itself. Here is Guideline § 3B1.3:

 
Abuse of Position of Trust or Use of Special Skill

 And because the Commentary to that section is brief, it too will be quoted in full:

 Application Notes :

 
1. The position of trust must have contributed in some substantial way to facilitating the crime and not merely have provided an opportunity that could as easily have been afforded to other persons. This adjustment, for example, would not apply to an embezzlement by an ordinary bank teller.
 
2. "Special skill" refers to a skill not possessed by members of the general public and usually requiring substantial education, training or licensing. Examples would include pilots, lawyers, doctors, accountants, chemists, and demolition experts.
 
Background : This adjustment applies to persons who abuse their positions of trust or their special skills to facilitate significantly the commission or concealment of a crime. Such persons generally are viewed as more culpable.

 In this wholly typical case defendant Lamont Arrington ("Arrington") was a "casual mailhandler" -- someone charged with various tasks involving the sorting, processing and stamping of mail -- who embezzled $ 14 in United States coins from a first-class package addressed to Rare Coins, Inc. *fn5" As his job title suggests, Arrington was not vested with any special level of responsibility -- quite the contrary, his access to mail that might contain things of value was no different from that of thousands of postal workers. *fn6" And he was charged with and pleaded guilty to an offense that by congressional definition ...


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