The number of tellers working at a given time in the typical bank is relatively small when compared with postal clerks working in the main post office in Chicago. The small number of tellers, combined with the rather sedate atmosphere in most banks, makes it easier for supervisors or branch managers to observe the tellers. While the defendant's employment inside the post office building makes her easier to observe than the mail carrier who is completely hidden from view for significant periods of time, she is more difficult to observe than a bank teller. In addition, she cannot be observed by the members of the public who have entrusted her with their mail, unlike the bank teller who faces the bank customers throughout the day.
The second prong of the test also places the defendant within the abuse of trust guideline. It is very difficult to assess her honesty in an objective and expedient way. There is no record of undelivered mail, and therefore no way to detect her thievery by an auditing procedure, unlike the financial transactions undertaken by an ordinary bank teller.
Since this analysis indicates that the defendant held a position of trust, the question becomes whether she abused her position "in a manner that significantly facilitated the commission or concealment of the offense. . . . " U.S.S.G. § 3B1.3. When compared with all other people, i.e., the general public, who would like to steal undelivered mail, the defendant has significantly better opportunities to commit and conceal her theft. She also is in a better position to steal undelivered mail than other postal employees whose duties do not include constant handling of pieces of mail.
The application of the abuse of trust guideline to a postal employee does not present double-counting problems. Ordinary theft does not include an element of abuse of trust. The increase under § 2B1.1(4) which covers theft of undelivered mail also does not encompass an abuse of trust; any defendant who breaks into a government mailbox or an individual's mailbox to steal undelivered mail is subject to that increase. A postal employee who has special access to undelivered mail and who abuses her position of trust to facilitate the theft of undelivered mail should be penalized under the abuse of trust guideline. while every United States Postal Service employee may be imbued with the public trust in the sense that the First Circuit used it in U.S. Postal Service v. American Postal Workers Union, AFL-CIO, 736 F.2d 822 (1st Cir. 1984), a smaller but substantial number who handle undelivered mail and through their jobs have special opportunities and access to steal mail without being detected may have positions of public trust as defined by the sentencing guideline.
III. A New Standard
The caselaw applies the two level enhancement under the abuse trust guideline to defendants in diverse positions from truck drivers
to bank loan officers
to mail carriers
to security guards
Two basic principles have emerged underlying the application of the guideline: first, positions of trust must confer the access or authority (not necessarily the right) to handle valuable things or to direst the disposition of such things
; and second, the access or authority increases the defendant's ability to commit or conceal the charged offense. The guideline already has been applied in a manner which fits this test. In most cases, courts emphasized special access to valuable items
, or special authority over people or valuable items
in deciding that the defendants before them held positions of trust. when the defendants used this access or authority to commit a crime or avoid detection of a crime, the courts found the guideline two level increase to be appropriate. Still, the analysis forced by the ordinary bank teller exclusion in the commentary makes the determination more difficult and controversial than it should be. The bank teller example obscures rather than enlightens the proper application of the guideline. This Court accepts the United states Attorney's suggestion that the commentary is in conflict with the plain meaning of the adopted guideline and therefore should be disregarded.
This Court is not the first one to disagree with the bank teller example.
Many courts have struggled to distinguish the bank teller because of the guideline commentary.
Some presume that embezzlement necessarily involves an abuse of trust and therefore the application of the guideline to a embezzling bank teller would be double-counting.
Others find that an ordinary bank teller is not in a position of trust. several dissenting opinions are based on the lack of satisfactory or meaningful distinction between bank tellers and the defendant.
The effect of the ordinary bank teller example in the commentary has been to confound the plain meaning of the guideline and distort the analysis of courts applying it.
The Hill principle and related indicia remain helpful measures but, because they stem from an accommodation of the bank teller exclusion in the commentary, they exclude some defendants who fit within the guideline. There is no good basis on which to exclude the ordinary bank teller who embezzles from one who abuses a position of trust in a manner that facilitates the commission or concealment of the offense. Judge Shadur in United States v. Arrington, 765 F. Supp. 945 (N.D. Ill. 1991) persuasively challenges the assumptions behind the Hill standards. Ordinary bank tellers can and do embezzle funds, evading detection commensurate with their creativity, their computer skills and the bank's detection sophistication and effort. Bank tellers are not easy to observe by their supervisors, can make computerized financial arrangements which release funds to them without actually grabbing cash from the drawer, and can juggle numbers to evade detection during daily audits.
Judge Shadur changes the focus from difficult-to-detect wrong to low level employment.
However, this distinction is not persuasive.
First, it assumes that positions of trust are also also positions of responsibility, skill, education, or experience.
In many positions, these attributes go hand in hand -- bank branch manager, chief financial officer, judge -- while other jobs require trustworthiness without the other implications. One of the best examples is postal employees who routinely sort, process and deliver mail. These jobs depend on the honesty of the employee despite being lower level, relatively unskilled positions. Second, the guideline simply does not require any special level of responsibility or seniority. The sentencing commission never distinguished managerial or supervisory positions, even though it easily could have. The teller example is tossed out without distinguishing features linked to it -- the Ninth Circuit's guess is as good as Judge Shadur's as to why an ordinary bank teller avoids the adjustment despite fitting within the explicit text of the guideline.
It is the access to or authority over valuable things which puts defendants in positions of trust. Defendants who use that access or authority to commit or conceal crimes abuse the position of trust that they hold. The guideline should be used to increase the offense level of those defendants. The two level increase under sentencing Guideline 3B1.3, for abuse of position of trust, should be applied to this defendant.
James B. Zagel
United States District Judge
Date 12 August 1992