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August 12, 1992



The opinion of the court was delivered by: JAMES B. ZAGEL



 The defendant, a postal employee, pled guilty to one count of knowingly and intentionally stealing from the United States Mail a first class letter containing U.S.D.A. food stamps. In calculating the appropriate sentence under the sentencing guidelines, the probation officer applied section 2B1.1 for theft, which required a base offense level of four. The base level increased to six, under section 2B1.1(b)(4), because the theft involved undelivered mail. After a two point reduction for acceptance of responsibility, the total base offense level reverted to four. The pre-sentence report does not include the two point increase in the defendant's offense level under Sentencing Guideline 3B1.3, for abuse of position of trust.

 I. Current, Disputed Standards

 Guideline 3B1.3 imposes the two level increase "if the defendant abused a position of public or private trust . . . in a manner that significantly facilitated the commission or concealment of the offense. . . ." The commentary to the guideline states:

 The position of trust must have contributed in some substantial way to facilitating the crime and not merely have provided an opportunity that could have as easily been afforded to other persons. This adjustment, for example, would not apply to an embezzlement by an ordinary bank teller.

 The Ninth Circuit, affirming the application of the guideline in United States v. Hill, 915 F.2d 502 (9th Cir. 1990), set forth one principle and two indicia for determining whether a defendant occupies a position of trust. After studying the commentary to the guideline and earlier cases applying the guideline adjustment *fn1" , the Ninth Circuit selected as the principle that "the primary trait that distinguishes a person in a position of trust from one who is not is the extent to which the position provides the freedom to commit a difficult-to-detect wrong." Id. at 506. The corresponding indicia adopted by the Ninth Circuit and also derived from the ordinary bank teller exclusion were the "inability of the trustor objectively and expediently to determine the trustee's honesty" and the "ease with which the trustee's activities can be observed." Id.

 Using these standards, the Ninth Circuit determined that Hill held a position of private trust and abused it within the meaning of the guideline. Finding the ordinary bank teller reference in the commentary "significant," the court searched for characteristics which supported the exclusion. The bank teller is subject to a daily accounting of financial transaction can be easily observed by branch manager, the court reasoned. The interstate truck driver, on the other hand, has the opportunity to steal the cargo unobserved and, in this case, the trustors, families moving overseas, had no expedient means by which to check for missing items. The court concluded that the bank teller was not in a position of trust and Hill was.

 Once the court decided that Hill, as a truck driver transporting household belongings between states, occupied a position of private trust, it analyzed whether he abused the position "in a manner that significantly facilitated the commission or concealment of the offense," as dictated by the guideline. U.S.S.G. § 3B1.3. Looking to the commentary for guidance on the question of facilitating the offense, the court focused on the language, "merely . . . provided an opportunity that could as easily have been afforded to other persons." It disagreed with the defendant that the other persons phrase meant compared to other truck drivers. Instead, the court held that the proper question "is whether Hill, relative to all people in a position to conspire to steal goods from interstate commerce (i.e., the public at large), was in a superior position as a result of a trust relationship." United States v. Hill, 915 F.2d at 507-8. Interpreted this way, Hill's position clearly gave him a special opportunity to steal the goods, and thus facilitated the commission of the offense.

 The majority of courts which have confronted the applicability of the abuse of trust guideline use standards similar to the Hill principle and determining factors. The defendant receives the abuse of trust increase if his activities are not supervised, and are not routinely checked by his employer. *fn2" Most courts have compared defendants to members of the general public in determining whether the same opportunity is afforded to other persons. *fn3"

 In United States v. Arrington, 765 F. Supp. 945 (N.D. Ill. 1991), Judge Shadur declined to apply the abuse of trust guideline to a "casual mailhandler" and took exception to both the Hill analysis and the United States Attorney's zeal in pursuing the upward departure for postal employees. The defendant, described as a "'casual mailhandler' -- someone charged with various tasks involving the sorting, processing and stamping of mail," did not hold a position of trust because he had no "special level of responsibility" and his access to mail was no different than that of thousands of postal workers." Id. at 947. Judge Shadur cited the applicability of the same guideline, $ 2B1.1, for mail theft by a postal employee or any other person and the increase under § 2B1.1(b)(4) for a minimum offense level of six if the theft involved undelivered mail, again without distinguishing postal employees, as evidence that the Sentencing Commission did not intend the abuse of trust increase to apply to mail theft by postal employees.

 II. Application of the Current Standards

 The United States Attorney argues that by stealing mail while employed by the Postal Service as an automated mark-up clerk, defendant abused her position of public trust in the manner contemplated by the guideline. The defendant prepared forwarding address labels and affixed them to pieces of mail. As a daily part of her job, she had contact with numerous pieces of mail entrusted to her by the public. Thus, not only did the defendant have access to valuable pieces of undelivered mail, she also could physically handle the mail without arousing suspicion by fellow employees or supervisors because it was part of her job. Her employment by the Postal Service placed her in a position of public trust because there was no record or means to track the undelivered mail she handled and she could not be watched at all times by postal inspectors. Because she used her ...

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