United States v. Snook, Ronald

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-2304

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RONALD SNOOK,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 CR 699-2—Ruben Castillo, Judge.

____________

ARGUED JANUARY 7, 2003—DECIDED APRIL 23, 2004

____________

Before COFFEY, ROVNER, and EVANS, Circuit Judges.

ROVNER, Circuit Judge. A jury found Ronald Snook guilty

of one count of conspiring to defraud the federal government

by violating the Clean Water Act, 18 U.S.C. § 371, 33 U.S.C.

§§ 1317(d) and 1319(c)(2)(A), and five counts of concealing

material information regarding a matter within the juris-

diction of the federal government, 18 U.S.C. § 1001(a)(1).

He was sentenced to concurrent terms of 21 months’

imprisonment, concurrent terms of two years of supervised

release, a $1,000 fine, and $600 in special assessments. On

appeal he challenges two evidentiary rulings, allegedly

improper statements by the prosecution during closing

2 No. 02-2304

arguments, and a two-level increase in his offense level for

abusing a position of trust, U.S.S.G. § 3B1.3. We affirm in

all respects.

Between 1994 and 1997 Snook was the “Environmental

Manager” at Clark Refining & Marketing, Inc., a petroleum

refinery in Blue Island, Illinois. Prior to being Environmen-

tal Manager, Snook had worked at Clark since 1989 as an

“Environmental Specialist.” Prior to that he was a partner

of an environmental consulting firm. As Environmental

Manager at Clark, two of his duties included ensuring the

refinery’s compliance with environmental regulations and

overseeing its wastewater treatment system. Each day,

Clark discharged on average over a million gallons of

processed wastewater into a sewer system that flowed into

a water treatment plant of the Metropolitan Water Recla-

mation District of Greater Chicago (District). Relevant to

this appeal are the District’s (EPA-approved) regulations of

Clark’s wastewater discharges.

The District’s Sewage and Waste Control Ordinance

prohibits Clark from discharging water with (1) a con-

centration of pollutants such as fats, oils, and greases of

greater than 100 milligrams per liter or (2) a pH level lower

than 5 or greater than 10. The ordinance requires discharg-

ers such as Clark to self-monitor their compliance and

submit reports (RD-115 reports) documenting compliance

semiannually to the District. In addition, the District

conducts its own periodic testing of dischargers; if it finds

that wastewater violates required limits, it will issue an

order to cease and desist. In such cases, dischargers such as

Clark are required to submit reports (RD-114 reports)

documenting that their wastewater is back in compliance.

Further, and most relevant here, for both types of reports

dischargers must submit all of their self-monitoring data

even if it was taken in addition to the minimum require-

ments, and dischargers must notify the District within 24

hours whenever they become aware of any violations.

No. 02-2304 3

In July 2000, Snook was indicted for conspiring along

with Elva Carusiello, an Assistant Manager at Clark, and

Environmental Monitoring and Technologies, Inc. (EMT), a

company Clark hired to test its wastewater, to selectively

report testing results to the District and for failing to report

violations. The indictment alleged that between 1994 and

1997 Clark had EMT test its wastewater on numerous

occasions and many of the tests revealed violations; yet

Snook submitted a number of RD-114 and RD-115 reports

on behalf of Clark that indicated results for only six days

(the minimum required) on which Clark’s wastewater

satisfied applicable standards, and he omitted any results

that showed violations. In addition, the indictment alleged

that Snook falsely told an inspector for the EPA that the

selectively reported data was the only data Clark had

collected. In January 2002, a jury found Snook guilty of

conspiracy and concealing material information regarding

a matter within the jurisdiction of the EPA.

I.

On appeal, Snook’s primary argument is that the district

court erred in excluding evidence purporting to show that

Clark had selectively reported results prior to Snook

becoming Environmental Manager and that EMT selec-

tively reported results for other clients in the past. Snook

contends that this evidence was relevant to his state of

mind, showing that he believed selective reporting was the

established practice at Clark and that it was legal. The

district court concluded that absent any evidence that

Snook was even aware of these practices, any minimal

probative value the evidence might have was outweighed by

its potential to be misleading, prejudicial, or confusing. FED.

R. EVID. 403. We review the district court’s decision for

abuse of discretion and will affirm it so long as it was

reasonable. United States v. Thomas, 321 F.3d 627, 630 (7th

Cir. 2003).

4 No. 02-2304

First, a preliminary matter. Although Snook argues that

the evidence was relevant to all six counts, his beliefs about

whether selective reporting was legal were irrelevant to

count one. To convict Snook for conspiring to violate the

Clean Water Act, which, in relevant part, imposes criminal

penalties for “[k]nowing violations,” 33 U.S.C.

§ 1319(c)(2)(A), the government needed to prove only that

Snook had knowledge of the underlying facts and not that

he knew the conduct was illegal. United States v. Wilson,

133 F.3d 251, 262 (4th Cir. 1997); United States v. Sinskey,

119 F.3d 712, 715-17 (8th Cir. 1997); see also United States

v. Ho, 311 F.3d 589, 605-06 (5th Cir. 2002) (Clean Air Act),

cert. denied, 123 S. Ct. 2274 (2003).

As to the remaining counts, Snook’s beliefs about whether

he had to report all data and violations were relevant, but

we agree with the district court that this proffered evidence

was too remote—absent some evidence Snook knew about

it. And even if Snook did know about the alleged past

practices of Clark or EMT, the evidence still might have

been properly excluded absent further evidence that he was

told, trained, or otherwise led to believe that selective

reporting was the proper procedure. (Perhaps he was aware

of the practices and told they were illegal or was told or

trained to do otherwise.) Thus the district court’s apt

description that “[u]nless there’s some link-up to this

defendant, all we’re dealing with is what I believe are

various inferences upon inferences of speculation.” There-

fore, given Snook’s lack of evidence that he was aware of

theses practices or that he was ever told they were legal,

the district court did not abuse its discretion in excluding

this evidence.

II.

Snook next argues that the district court erred in allowing

the government to present “other acts” evidence. FED. R.

No. 02-2304 5

EVID. 404(b). A former EMT technician testified that in

either 1992 or 1993 he returned samples of what he be-

lieved to be hazardous materials to Clark, and Snook told

him to dispose of the materials at or near a canal dock.

Snook argued that this was improper evidence offered to

show his propensity to violate environmental laws; the

government argued that it showed motive, intent, and plan,

see FED. R. EVID. 404(b), i.e., Snook’s motive, intent, or plan

to save money for Clark by not complying with proper

procedures. The district court admitted the testimony but

instructed the jury to regard it only as to Snook’s intent,

motive, knowledge, or plan.

The technician’s testimony was rather ambiguous, and

therefore of limited probative value: for example, he could

not be sure whether the samples actually contained haz-

ardous materials, whether he actually showed the samples

to Snook, or whether Snook was referring him to a proper

disposal area located near the dock. But we need not decide

whether this testimony was erroneously admitted, because

even if it was, it was harmless due to the district court’s

limiting instruction and, more importantly, the overwhelm-

ing evidence of Snook’s guilt. See, e.g., United States v.

Rollins, 301 F.3d 511, 520 (7th Cir. 2002). First, the

government offered a number of documents including both

(1) reports prepared and signed by Snook that revealed only

favorable data, and (2) more complete reports prepared for

Clark from the same period showing numerous violations

that were not turned over to the District. (And Snook never

challenged the fact that he engaged in selective reporting.)

Second, an EMT employee, Nick Preys, testified that Snook

(1) contacted him to perform testing for Clark; (2) instructed

him to provide two types of reports: one with all testing

data, and one with only data showing passing results for six

separate days during the testing period; and (3) later

instructed Preys to prepare RD-115 reports for Clark using

only passing data. Third, Snook’s assistant, Carusiello,

6 No. 02-2304

testified that Snook showed her portions of the District’s

reporting ordinance and acknowledged to her that viola-

tions needed to be reported within 24 hours. Fourth, the

government submitted correspondence from Snook to the

District in which he acknowledged that all data must be

submitted and violations reported. Fifth, an EPA investiga-

tor testified that Snook repeatedly told him that the

selectively reported data was all that Clark had collected.

Sixth, two environmental experts testified that the report-

ing requirements were common knowledge among those in

the environmental field. Finally, the government estab-

lished that Snook had worked for a number of years in the

environmental field. Given this evidence, we fail to see how

Snook was prejudiced by the technician’s testimony.

III.

Snook also argues that on three occasions during closing

argument the government improperly commented on his

decision not to testify at trial. First, after summarizing the

government’s case, the prosecutor asked, “[a]nd what is the

defendant’s response?” Second, after referring to statements

made in Snook’s opening statement, the prosecutor stated,

“I’ve heard nothing, nothing that backs up those representa-

tions.” Third, in discussing the conspiracy count, the

prosecutor stated that “[a]ll you have to find is that [Snook]

agreed not to report violations, and the evidence is basically

uncontroverted in that instance.”

The Fifth Amendment prohibits prosecutors from inviting

jurors to draw adverse inferences from a defendant’s

decision not to testify by commenting, either directly or

indirectly, on that decision. United States v. Mietus, 237

F.3d 866, 871 (7th Cir. 2001); United States v. Robbins, 197

F.3d 829, 835 (7th Cir. 1999). Indirect comments are

improper if either the prosecutor manifestly intended to

refer to the defendant’s silence or a jury would naturally

No. 02-2304 7

and necessarily take the comments to be a remark on that

silence. Mietus, 237 F.3d at 871. Comments that govern-

ment evidence is unrebutted are improper only if the

defendant was the only person who could have rebutted the

evidence. Id. If the prosecutor’s statements are improper,

we determine whether the defendant was prejudiced, or

whether the statements rendered the trial so unfair as to

deny the defendant due process. Robbins, 197 F.3d at 836.

The context of the first two statements reveals that the

prosecutor was commenting on Snook’s case rather than on

his decision not to testify. The first statement (“And what

is the defendant’s response?”) came as a transition after a

summary of the government’s case and just before a sum-

mary of the case put on by Snook. The second statement

(“I’ve heard nothing, nothing that backs up those representa-

tions.”) was a response to statements made by Snook’s

counsel that the evidence would show that selective re-

porting was the established procedure at Clark and the one

taught to Snook (this referred to the excluded evidence

discussed above in part I). And following both statements,

the district court reminded the jury that the government

and not Snook had the burden of proof. See United States v.

Wilson, 237 F.3d 827, 835 (7th Cir. 2001) (juries assumed to

follow instructions). Because these statements were com-

ments on the weakness of Snook’s case rather than his

silence, they were not improper. See United States v. Xiong,

262 F.3d 672, 675 (7th Cir. 2001) (prosecutor may comment

on weakness of defendant’s case).

The third statement is a closer call. The prosecutor’s

comment that Snook’s decision to selectively report was

“basically uncontroverted” would be inappropriate if Snook

were the only person who could refute the point. But this

was not the case. Snook’s counsel could have, for example,

tried to show that the documents Snook submitted did

report all the available data or that others submitted the

data without his knowledge. Moreover, Snook never chal-

8 No. 02-2304

lenged whether he selectively reported; his theory was that

he believed it to be legal. So the prosecutor was more likely

referring to this fact rather than Snook’s silence. Consistent

with this is the prosecutor’s statement immediately before

that, on the conspiracy count, the government need not

prove Snook knew the practice was illegal. But even if this,

or the other two statements, crossed the line and were

improper, Snook was not prejudiced because of the over-

whelming evidence of his guilt, as discussed above. See

Mietus, 237 F.3d at 873; Xiong, 262 F.3d at 676.

IV.

Finally, Snook challenges the district court’s decision to

impose a two-level increase in offense level for abusing a

position of trust. U.S.S.G. § 3B1.3. The increase is appropri-

ate when a defendant occupies a position of trust and

abuses that trust to significantly facilitate a crime. United

States v. Cruz, 317 F.3d 763, 766 (7th Cir. 2003); United

States v. Mabrook, 301 F.3d 503, 510 (7th Cir. 2002). No

formal labels or categories dictate when a defendant

occupies such a position; instead we look to the relationship

between the defendant and the victim and the level of

responsibility the defendant was given. Mabrook, 301 F.3d

at 510. We review the district court’s interpretation of the

Guidelines de novo, and we review the district court’s

finding that the defendant occupied and abused a position

of trust for clear error. Cruz, 317 F.3d at 765-66; Mabrook,

301 F.3d at 510.

The district court imposed the increase after finding that

Snook occupied and abused a position of trust with respect

to his victims, the District and the public, based on the

responsibilities given to Snook in his job and under the

statute, and his potential to affect health and safety. Snook

contends that he occupied a position of trust with respect to

No. 02-2304 9

Clark but not to the District or the public. We disagree. The

Clean Water Act is public-welfare legislation and the

victims of violations are the public. United States v. Technic

Servs., Inc., 314 F.3d 1031, 1049 (9th Cir. 2002). As Envi-

ronmental Manager at Clark, Snook was given discretion to

devise Clark’s wastewater treatment and testing systems,

as well as to decide when to conduct such testing. And

although the District did periodically conduct its own

testing, it was for the most part dependent on the data that

Clark reported. The facts here illustrate this point effec-

tively—for over three years Clark’s wastewater had numer-

ous violations that went undetected because Snook, in his

unique position as Environmental Manager, did not report

them. Moreover, unlike other self-reporting situations

(taxpayers, for example), the regulations here apply to

matters that directly and significantly affect the public’s

health and safety. See United States v. Gonzalez-Alvarez,

277 F.3d 73, 81-82 (1st Cir. 2002) (abuse-of-trust increase

applied to dairy farmer for not complying with regulations);

United States v. White, 270 F.3d 356, 372-73 (6th Cir. 2001)

(employee at water-treatment plant); United States v.

Turner, 102 F.3d 1350, 1360 (4th Cir. 1996) (owners and

operators of coal mine); but see Technic, 314 F.3d at 1049-52

(not applied to private contractor hired to clean up asbes-

tos). Given the responsibility and discretion given to Snook

in his position as Environmental Manager in complying

with the District’s regulations, and his abuse of that

position, the district court did not err in applying the

sentencing increase.

AFFIRMED.

10 No. 02-2304

COFFEY, Circuit Judge, dissenting. I agree with the ma-

jority’s presentation of the facts at issue, and I concur with

the majority’s decision to affirm Snook’s conviction. How-

ever, I cannot join the majority’s decision to affirm Snook’s

sentence, because, notwithstanding the majority’s assertion

to the contrary, I do not agree that Snook occupied a

“position of trust” (as that term is used in the Guidelines)

vis-à-vis the public. Thus, it would be entirely improper to

apply the U.S.S.G. § 3B1.3 “abuse of public trust” enhance-

ment against Snook in this case.

The district court enhanced Snook’s sentence pursuant to

U.S.S.G. § 3B1.3, which provides for a two-level enhance-

ment where a defendant abuses a “position of trust” that he

occupies in relation to the victim of his crime. Section 3B1.3

provides, in relevant part:

If the defendant abused a position of public or private

trust, or used a special skill, in a manner that signifi-

cantly 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 included in

the base offense level or specific offense characteristic.

As delineated in the commentary to the Guidelines, the

phrase “position of trust” “refers to a position of public or

private trust characterized by professional or managerial

discretion (i.e., substantial discretionary judgment that is

ordinarily given considerable deference).” U.S.S.G. § 3B1.3

comment. (n.1). In explaining the proper application of a

“position of trust” enhancement, the commentary goes on to

set forth a number of examples of “abuse of trust,” in-

cluding, “embezzlement of a client’s funds by an attorney

serving as a guardian, a bank executive’s fraudulent loan

scheme, or the criminal sexual abuse of a patient by a phy-

sician under the guise of an examination.” Id.

In the case before us, the trial judge found that Snook, as

the Environmental Manager at a private petroleum refinery

No. 02-2304 11

(Clark), held a “position of trust” vis-à-vis the public.1

Moreover, the court concluded that by violating the Clean

Water Act (“CWA”)—a “health and regulatory stat-

ute”—Snook engaged in criminal activity that had a

“potential direct physical effect on the general public . . .

such that . . . the adjustment . . . for violating a . . . position

of trust [wa]s appropriate.” Sent. Tr. at 19-20. This Court

“review[s] the district court’s application of the enhance-

ment de novo and review[s] the finding that [Snook]

occupied such a position under the clearly erroneous stan-

dard.” United States v. Mabrook, 301 F.3d 503, 510 (7th Cir.

2002).

As set forth under Section 3B1.3, the “abuse of trust” en-

hancement applies only where a defendant possessed the

requisite level of discretion, and, further, where that dis-

cretion was “entrusted to the defendant by the victim.”

1

At sentencing, the court used the phrases “position of private

trust” and “position of public trust” interchangeably, and in fact,

at one point, purported to “overrule the defendant’s objection to

the use of . . . [the Section] 3B1.3 [enhancement for violation of]

position of private trust.” Sent. Tr. at 20. Elsewhere in its oral

ruling, however, the court made clear that its application of the

Section 3B1.3 enhancement was based upon Snook’s violation of

a position of public trust, noting that the CWA was “a statute that

[wa]s uniquely a health and regulatory statute, [and that Snook’s

violation thereof presented] a potential direct physical effect on

the public and the public that is trying to be served by the MWRD.”

Id. at 19-20. Where, as here, the victim of the defendant’s criminal

activity was the general public, the Section 3B1.3 enhancement

applies, if at all, if the defendant occupies a position of trust vis-à-

vis the public. See United States v. White, 270 F.3d 356, 371 (6th

Cir. 2001) (“The abuse-of-trust enhancement may only be applied

where the defendant abused a position of trust with the victim of

his charged conduct.”) Thus, as the majority has done, I will

assume the district court applied the enhancement on the basis of

Snook’s alleged violation of a position of public trust.

12 No. 02-2304

United States v. Broderson, 67 F.3d 452, 456 (2d Cir. 1995)

(emphasis added). That is, the “position of trust” determina-

tion is assessed “from the perspective of the victim.” United

States v. Hathcoat, 30 F.3d 913, 919 (7th Cir. 1994).

Moreover, recognizing the fiduciary nature of the “trust”

relationships set forth as examples in the commentary—

i.e., attorney/client, bank executive/bank client, and doctor/

patient relationships—courts have emphasized that, to

qualify as a “position of trust,” “[t]he guideline enhance-

ment requires more than a mere showing that the victim

had confidence in the defendant. Something more akin to a

fiduciary function is required.” United States v. Brunson, 54

F.3d 673, 678 (10th Cir. 1995) (emphasis added); see, e.g.,

Mabrook, 301 F.3d at 510 (noting that a defendant’s

fiduciary duty vis-à-vis the investors in his company placed

him in a position of private trust). Thus the victim must

have placed the defendant in a position where he or she is

performing a “fiduciary function,” or exercising discretion

over the victim’s affairs. See Varity Corp. v. Howe, 516 U.S.

489, 504 (1996). Indeed, it is worth noting that “every

example of an abuse of trust in the Commentary . . .

involves a victim entrusting an agent or employee with

discretion.” Broderson, 67 F.3d at 456.

Applying these principles to the instant case, it is clear

that Snook did not occupy a “position of trust” vis-à-vis the

public, for the simple reason that he did not serve in a fi-

duciary (or even quasi-fiduciary) capacity with respect to

his victim, the public. One cannot be a fiduciary without

first being placed in that position by the claimed beneficiary

of the relationship. Lopacich v. Falk, 5 F.3d 210, 213 (7th

Cir. 1993) (“In order to establish evidence of a fiduciary

relationship, the plaintiff must show [first] that she reposed

confidence in the defendant . . . .”). The public did not place

Snook in the position of Environmental Manager, and thus

“entrust” him to comply with the Clean Water Act’s report-

ing requirements. Snook was not a government employee,

No. 02-2304 13

and thus could not be considered or classified as a public

servant by nature of his employment. Nor was he even a

private employee subject to professional licensing require-

ments, and therefore entrusted to abide by certain stan-

dards in order to maintain the public’s trust in his profes-

sion (such as a physician or an attorney). Rather, Snook

was a private employee, selected by Clark, and not the

public, to monitor the corporation’s compliance with the

Clean Water Act. And it was Clark, and not the public, who

reposed its confidence in Snook such that a fiduciary

relationship may have been created. To be sure, the public

may have “trusted” Snook to obey applicable environmental

regulations, as it “trusts” any citizen to abide by any law

protecting matters in the public interest (such as drunk

driving laws, speeding laws, reckless driving laws, anti-

theft laws, and environmental protection laws, etc.). But the

public did not entrust Snook (in the sense of placing a

fiduciary obligation on Snook) with the duty of protecting

its health and welfare interests in the environment; when

Clark selected Snook to serve as its Environmental Man-

ager, he did not take an oath of office or swear to abide by

the provisions of the Clean Water Act and protect the public

from pollutants in its water system. Thus Snook was

certainly not acting in the capacity of an agent or employee

of the general public. See Broderson, 67 F.3d at 456.

The fact that the District’s regulatory regime involved an

element of self-reporting duty on the part of Clark (and

Snook, as Clark’s agent) does not change this result. Al-

though Snook may have been responsible for certifying

Clark’s water quality reports to the District in accordance

with the CWA, “whatever ‘trust’ [the public or the district]

placed in [Snook] was based [entirely] on the explicit

commands of [the CWA and related regulations].” Id. Thus,

Snook had bare legal and statutory obligations to the public

in general, as does any private citizen who files a tax return

or drives a vehicle on public roadways, but nothing more.

14 No. 02-2304

If any party in this scenario was a fiduciary of the public’s

environmental welfare and health safety, it was the District

Office or district officer (not Clark or Snook), insofar as the

District was ultimately responsible for ensuring Clark’s

compliance with applicable regulations. The District (or the

district officer in command) performed numerous unan-

nounced inspections of Clark’s water discharge to ensure its

compliance—anywhere from two to seven tests per year

during the years 1993 through 1996. See Tr. at 209-210,

217-18. And, whenever Clark was found not to be in

compliance, the District issued cease and desist orders to

Clark to enforce compliance. Id. at 230. Indeed, the fact

that the District monitored Clark’s discharge levels

annually—some two to seven times per year—to assure

compliance belies the Government’s claim that it was Clark,

and not the District, who was trusted to comply with the

CWA and attendant regulations.

The majority disagrees, arguing that because the District

does not have the resources to fully monitor or ensure

Clark’s compliance with the CWA, Clark (and Snook, as

its officer) occupied a “position of trust” vis-à-vis the public.

See Opinion at 9 (“Snook was given discretion to . . . decide

when to conduct [water] testing [and] although the District

did periodically conduct its own testing, it was for the most

part dependent on the data that Clark reported.”). But this

is true of many regulatory frameworks—the IRS, for

example, certainly does not have enough resources to audit

every defaulting and defrauding taxpayer annually. Thus,

if we extend the majority’s reasoning to the IRS arena, then

every corporate executive who certifies a corporation’s tax

return to the IRS occupies a “position of public trust,” and

thus may be subject to a Section 3B1.3 enhancement for

filing a false tax return even though he has every reason to

believe his client gave him accurate information. See

Broderson, 67 F.3d at 455 (“[t]he government’s theory seems

so [expansive and] far reaching that it might cause virtually

No. 02-2304 15

anyone who is commanded by statute to make an accurate

report to the government to be subject to a Section 3B1.3

enhancement . . . . [including] taxpayers who file false tax

returns . . . . We believe that it is fairly obvious that the

Sentencing Commission harbored no [such] intent that the

enhancement be so sweeping.”).

Certainly, this would be an absurd result, for a corporate

officer who is a private employee of a private corporation, is

not a “fiduciary” or agent of the public (even though his

fraudulent reporting may do significant harm to the public

by imposing a heavier burden on other taxpayers). Equally

absurd is the notion that a research scientist who discovers

a wonder drug that is approved by the Food and Drug

Administration (“FDA”), but is later discovered to have

dangerous side effects, could be subject to a Section 3B1.3

“position of public trust” enhancement. Under the majority’s

expansive reading, such a scientist who may have negli-

gently performed his research, would have abused a

“position of public trust” in reporting his findings to the

FDA, even though the FDA is the entity ultimately respon-

sible for ensuring that the public is safe from dangerous

pharmaceuticals.

Seeking to avoid this extension of their logic, the majority

would limit application of the public trust enhancement to

criminal activities that implicate issues of “public health.”

However, it is unclear on what basis the majority makes

this distinction, for no “health and welfare” distinction is to

be found anywhere in the text of the Sentencing Guidelines

themselves.2 Indeed, nothing in the Sentencing Guidelines

2

Curiously, the majority cites United States v. White, 270 F.3d

356, 372-73 (6th Cir. 2001) in support of the distinction between

reporting crimes concerning “public health” (where the enhance-

ment is applicable) and all other reporting crimes (such as filing

(continued...)

16 No. 02-2304

suggests that the public trust enhancement should apply in

a different manner when issues of health and safety are

concerned—and yet that is the exact distinction the major-

ity reads into the Guidelines in the instant opinion. See

Opinion at 9-10 (noting that the “public trust enhancement”

would not apply to ordinary private citizens who failed to

abide by self-reporting requirements (such as taxpayers),

but that it does apply to citizens such as Snook because

Snook violated “regulations [that] apply to matters that

directly and significantly affect the public’s health and

safety.”).

Moreover, save for the First Circuit’s opinion in United

States v. Gonzalez-Alvarez, 277 F.3d 73, 81-82 (1st Cir.

2002), no other circuit court (including the Seventh Circuit)

has extended the public trust enhancement to private

individuals who work in industries that are regulated to

protect the public health but this is exactly what the

(...continued)

a false IRS return). Although the White Court did find an abuse

of public trust where the defendant had committed an environ-

mental wrong, White is distinguishable from the instant case, in

that it involved the environmental wrongdoings of an officer of a

local Water District—a governmental entity, and not a private

corporation—who was on the public’s payroll and clearly had a

duty to the public. That is, the Sixth Circuit concluded that the

defendant occupied a position of public trust because he, a public

servant, was “charg[ed] [with the control of the Water District’s]

water purification efforts with apparently little or no oversight.”

Id. at 372. Thus, the Court “imputed” the “quasi-fiduciary trust

relationship between the District and its customers” to White. Id.

at 373.

In this case, by contrast, Clark did not serve the general public,

insofar as it was a private oil refinery and not a governmental

water provider. Thus, there exists no quasi-fiduciary relationship

between Clark and the public that may be imputed to Clark’s em-

ployees (including Snook).

No. 02-2304 17

majority has chosen to do by announcing the “public health”

distinction it sets forth today. In fact, the Ninth Circuit

expressly rejected such a distinction in United States v.

Technic Services, Inc., 314 F.3d 1031 (9th Cir. 2002), noting

that, while the importance of health and safety laws may

“heighten the amount of interest the public has in [citizens

abiding by such laws],” such fact alone “do[es] not [estab-

lish] the relational kind of interest that is required to find a

position of public trust” under the Guidelines. Technic

Services, 314 F.3d at 1050 (emphasis added).

Indeed, the position of trust inquiry focuses not on the

nature of the statute violated by the defendant, but rather

on whether or not a “ ‘fiduciary or personal trust relation-

ship exist[ed]’ with [the victim], and [whether] the de-

fendant t[ook] advantage of the relationship to perpetrate

or conceal the offense.’ ” United States v. Caplinger, 339

F.3d 226, 237 (4th Cir. 2003) (quoting United States v.

Koehn, 74 F.3d 199, 201 (10th Cir. 1996)). Thus, for a

defendant to have occupied a position of trust with the

public, he must have worked as an agent or employee of the

government, or held some other fiduciary-type position vis-

à-vis the government or the public, and this was not the

case in the factual situation before us.3 See, e.g., United

3

Notably, the First Circuit, in Gonzalez-Alvarez, 277 F.3d 73 (1st

Cir. 2002), is the only court that has ever found that the “abuse of

public trust” enhancement applies to a wholly private employee

whose profession was not regulated by professional licensing

requirements. Until Gonzalez-Alvarez, the broadest application of

the enhancement was to beneficiaries of government contracts,

see, e.g., United States v. Velez, 185 F.3d 1048 (9th Cir. 1999)

(private immigration consultant who was given favored status

under a statutory grant when submitting applications to the

Immigration and Naturalization Service), physicians, see, e.g.,

(continued...)

18 No. 02-2304

States v. Kuhn, 345 F.3d 431, 437 (6th Cir. 2003) (hold-

ing that the Superintendent of a city’s water treatment

plant held a position of public trust because he was a

“government employee, charged with the safe and efficient

operation of a wastewater treatment operation”); Technic

Services, 314 F.3d at 1050 (concluding that the secretary of

a government contractor in charge of asbestos clean-up did

not hold a position of public trust, because he had “no trust

relationship with the government by virtue of government

employment; nor was he a public officer with a ‘special’ or

quasi-fiduciary relationship to particular members of the

public because of duties to protect their health; nor did

he hold a position in which the public directly delegates

duties and places the public welfare in the incumbent’s

hands”); United States v. White, 270 F.3d 356, 372-73 (6th

Cir. 2001) (holding that an employee of the local Water

District held a position of trust vis-à-vis the public, because

customers of the Water District “granted the District sub-

stantial discretion . . . as to how to provide [their drinking

water]” and that such “quasi-fiduciary trust relationship . . .

[was] imput[able]” to the District employee); Broderson, 67

F.3d at 452 (holding that employee of government contrac-

tor did not occupy position of trust vis-à-vis the government,

for in his negotiations with the government, he was bound

not by fiduciary obligations, but by the Truth in Negotia-

tions Act and the Federal Acquisition Regulations). But see

Gonzalez-Alvarez, 277 F.3d at 81 (concluding that a dairy

farmer held a position of public trust, insofar as the public

“was entitled to have diary farmers such as [defendant]

provide milk . . . compliant with all FDA and ORIL regula-

tions”). And, pertinent to the instant case, “statutory

(...continued)

United States v. Rutgard, 116 F.3d 1270 (9th Cir. 1997), and

attorneys, see, e.g., United States v. Hemmingson, 157 F.3d 347

(5th Cir. 1998).

No. 02-2304 19

reporting requirements do not create a position of trust [or

fiduciary obligation] relative to a victim of the crime.”

United States v. Garrison, 133 F.3d 831, 840 (11th Cir.

1998).

No matter how egregious a defendant’s conduct, Section

3B1.3’s abuse of trust enhancement may not be applied

against him unless he occupied a position of trust vis-à-vis

the victim, and abused that position of trust to facilitate his

crime. In the factual situation presented to us, the fact that

Snook was not employed by the government (but, rather, a

private oil refinery), together with the fact that Snook’s

environmental reports submitted to the District were

“monitored” by the District through random sampling (some

two to seven times per year) reveals that Snook did not

have a fiduciary or personal trust relationship with the

victim, the public (or the victim’s fiduciary, the District).

Thus, the Section 3B1.3 public trust enhancement does not

apply. For this reason, the sentencing court’s application of

the public trust enhancement to Snook was clearly errone-

ous; I would reverse the imposed sentence and remand for

resentencing.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—4-23-04