On Appeal from the United States District Court for the District of New Jersey. (D.C. Crim. No. 91-00207-01)
Before: Sloviter, Chief Judge, Mansmann, and Hutchinson, Circuit Judges
Appellee Arthur Lieberman pled guilty to one count of bank embezzlement and one count of attempted income tax evasion. The judgment of sentence imposed five years of probation on each count to be served concurrently, eight months of home detention, restitution of $128,442.37 plus interest, and a special assessment of $100. The court also ordered Lieberman to pay 10% of his gross weekly salary towards restitution to the bank and to file an amended tax return for the years affected by his embezzlement.
The government appeals, arguing that the district court erred in its application of the United States Sentencing Guidelines (U.S.S.G. or Guidelines) (1) in concluding that the two-level increase for "abuse of position of trust" under U.S.S.G. § 3B1.3 was inapplicable; (2) in providing an additional level of downward adjustment for what the court termed Lieberman's extraordinary degree of acceptance of responsibility; and (3) by departing downward for an "inappropriate manipulation of the indictment."
Facts and Procedural History
The facts are largely uncontested.*fn1 Lieberman began working at the National Community Bank in Maywood, New Jersey in 1980 as a management trainee. He was promoted several times and became a vice president of the bank. One of Lieberman's duties was to balance the bank's suspense account, the account in which loan and fee payments received by the bank were placed pending transfer to other accounts. Lieberman admitted that he "proved the ending balance [of the suspense account] at the end of the month" and that no one else was watching the account.
Between late 1985 and January 1990, Lieberman engaged in approximately 36 separate transactions in which he transferred money from the bank's suspense account into his own checking account in amounts ranging from $1,000 to $7,500. During this period, Lieberman did not report the embezzled money on his tax returns.
In early 1990, Lieberman was confronted by bank officials concerning the improper transactions and immediately admitted his wrongdoing. He explained to managers of the bank how he was able to avoid detection of the transfers and resigned from his position as vice president on January 30, 1990. He went to the FBI to admit his embezzlement from the bank.
On January 17, 1991, Lieberman signed a plea agreement. Pursuant to this agreement, on May 2, 1991, Lieberman entered a plea of guilty to a two-count Information charging him with bank embezzlement, in violation of 18 U.S.C. § 656 and 18 U.S.C. § 2, and attempted income tax evasion, in violation of 26 U.S.C. § 7201.
Although Lieberman pled guilty to a charge that he embezzled approximately $94,000, and the plea agreement stipulated that the loss to the bank was between $50,001 and $100,000, Lieberman entered into a consent judgment with the bank (which was duly executed by the Superior Court for Bergen County, New Jersey on May 24, 1991) whereby he agreed to pay the bank $128,442.37 along with pre-judgment interest in the amount of $11,967.04.
The presentence report prepared by the United States Probation Office under the Sentencing Guidelines determined that Lieberman's total offense level was thirteen. The Probation Office arrived at this figure by grouping the tax evasion and embezzlement counts under U.S.S.G. § 3D1.2;*fn2 calculating the base offense level for bank embezzlement at four, U.S.S.G. § 2B1.1; increasing by seven levels because the amount of loss was approximately $94,000, U.S.S.G. § 2B1.1(b)(1);*fn3 increasing by two levels for more than minimal planning, U.S.S.G. § 2B1.1(b)(5); increasing by two levels for abuse of a position of trust, U.S.S.G. § 3B1.3; and decreasing by two levels for acceptance of responsibility, U.S.S.G. § 3E1.1(a).
Both the government and Lieberman objected to some elements of this calculation. The government objected to the grouping of the embezzlement and tax evasion counts. Lieberman objected to the two-level increase based on abuse of trust, and also contended that there were unusual circumstances regarding his acceptance of responsibility warranting a downward departure. At the sentencing hearing on July 15, 1991, the district court sentenced Lieberman based on a total offense level of ten. The court deviated from the presentence report in three respects: (1) it ruled that the two-level increase for abuse of a position of trust provided in section 3B1.3 of the Guidelines was inapplicable; (2) it departed downward one level based on Lieberman's unusual degree of acceptance of responsibility; and (3) it ruled that the embezzlement charge and the tax evasion charge should not be grouped under U.S.S.G. § 3D1.2, which had the effect of increasing Lieberman's total offense level by two levels, but then it departed downward by two levels because of what it termed an "inappropriate manipulation of the indictment." The court accepted the other aspects of the Guidelines calculation contained in the presentence report.
We have jurisdiction over the government's appeal of Lieberman's sentence under 18 U.S.C. § 3742(b) (1988) and 28 U.S.C. § 1291 (1988).
Abuse of Position of Trust
The government's contention that the district court erred in not increasing Lieberman's sentence by two levels for abuse of a position of trust implicates section 3B1.3 of the Sentencing Guidelines. This section provides, in relevant part:
If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels. This adjustment may not be employed if an abuse of trust or skill is ...