The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 10, 2012
No. 11-10627
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 4:10-cr-00050-RH-WCS-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
EUGENE TELFAIR,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(April 10, 2012)
Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:
Eugene Telfair appeals his convictions and sentences for conspiracy to steal
or misapply funds from an organization that receives federal assistance and to
commit wire fraud, in violation of 18 U.S.C. §§ 371, 1349, 666(a)(1)(A), and
1343; stealing or misapplying funds from an organization that receives federal
assistance, and aiding and abetting, in violation of 18 U.S.C. §§ 666(a)(1)(A) and
2; and misapplying funds as a credit union employee, and aiding and abetting, in
violation of 18 U.S.C. §§ 657 and 2. On appeal, Telfair argues that the evidence at
trial was insufficient to convict him of the crimes charged. Telfair also argues that
the district court clearly erred at sentencing in calculating a reasonable loss
amount under U.S.S.G. § 2B1.1(b)(1), and that it erred in concluding that the two-
level enhancement for abuse of a position of trust was appropriate under U.S.S.G.
§ 3B1.3.1
I. The Sufficiency of the Evidence
Telfair argues that the district court erred in denying his motion for
judgment of acquittal, and that the evidence at trial was insufficient to convict him
of any of the crimes charged, because the evidence showed that he had a contract
for consulting services with Florida Agricultural and Mechanical University
1
Telfair attempts to adopt the arguments in the brief of his codefendant Robert Nixon,
filed in appeal number 11-10697, but Nixon raises no additional issues. Therefore, Telfair’s
attempt to adopt Nixon’s brief has no practical impact on the appeal.
2
(“FAMU”). Telfair asserts generally that, pursuant to the terms of the consulting
services agreement (“CSA”), he was entitled to $150,000.00 that was at issue in
the case, so as a matter of law, he cannot be convicted of stealing or conspiring to
steal money that is lawfully his. Telfair asserts that although FAMU remitted the
$150,000.00 check at issue to FAMU Federal Credit Union (“FAMU FCU”), the
check was intended for him pursuant to the CSA, and he had the authority as
President of FAMU FCU to negotiate the check.
We review de novo the denial of a motion for judgment of acquittal, and in
reviewing the sufficiency of the evidence underlying a conviction, we consider the
evidence “in the light most favorable to the government, with all inferences and
credibility choices drawn in the government’s favor.” United States v. DuBose,
598 F.3d 726, 729 (11th Cir. 2010) (quotation omitted). The standard of review
for sufficiency of the evidence is whether a reasonable trier of fact could find that
the evidence established guilt beyond a reasonable doubt. United States v.
Godinez, 922 F.2d 752, 755 (11th Cir. 1991). “The question is whether reasonable
minds could have found guilt beyond a reasonable doubt, not whether reasonable
minds must have found guilt beyond a reasonable doubt.” United States v. Bacon,
598 F.3d 772, 775 (11th Cir. 2010) (quotation and alteration omitted).
Accordingly,
3
It is not necessary for the evidence to exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt . . . . The jury is free to choose
between or among the reasonable conclusions to be drawn from the
evidence presented at trial, and the court must accept all reasonable
inferences and credibility determinations made by the jury.
United States v. Garcia, 447 F.3d 1327, 1334 (11th Cir. 2006) (quotations
omitted). We are “bound by the jury’s credibility choices, and by its rejection of
the inferences raised by the defendant.” United States v. Peters, 403 F.3d 1263,
1268 (11th Cir. 2005).
In order to convict someone of engaging in a conspiracy, the government
must prove: “1) the existence of an agreement to achieve an unlawful objective,
2) [the defendant’s] knowing and voluntary participation in the agreement, and
3) the commission of an act in furtherance of the agreement.” United States v.
Tampas, 493 F.3d 1291, 1298 (11th Cir. 2007); 18 U.S.C. § 371. “The knowledge
requirement is satisfied when the [g]overnment shows a defendant’s awareness of
the essential nature of the conspiracy.” United States v. Ndiaye, 434 F.3d 1270,
1294 (11th Cir. 2006). The agreement and participation in the conspiracy need not
be explicit and may be inferred from circumstantial evidence. United States v.
Prince, 883 F.2d 953, 957 (11th Cir. 1989). “[T]he defendant’s assent can be
inferred from acts that furthered the conspiracy’s purpose.” United States v.
4
Miller, 693 F.2d 1051, 1053 (11th Cir. 1982) (quotation omitted).
In order to convict someone of stealing or misapplying funds from an
organization receiving federal assistance, the government must prove: 1) the
defendant converted property owned by, or under the care, custody, or control of
an organization receiving federal assistance; 2) the defendant was an agent of such
an organization; 3) that property was valued at $5,000 or more; and 4) the
organization received in excess of $10,000 in federal funds during the 1-year
period in which the defendant converted the property. 18 U.S.C. § 666(a)(1)(A);
Tampas, 493 F.3d at 1298. The statute defines an “agent” as one who is
“authorized to act on behalf of another” and, “in the case of an organization or
government, includes a servant or employee, and a partner, director, officer,
manager, and representative.” 18 U.S.C. § 666(d)(1); United States v. Langston,
590 F.3d 1226, 1233-34 (11th Cir. 2009).
“The elements of wire fraud under 18 U.S.C. § 1343 are (1) intentional
participation in a scheme to defraud and (2) use of the interstate wires in
furtherance of the scheme.” United States v. Hasson, 333 F.3d 1264, 1270 (11th
Cir. 2003). “A scheme to defraud requires proof of material misrepresentations, or
the omission or concealment of material facts reasonably calculated to deceive
persons of ordinary prudence.” Id. at 1270-71 (citations omitted). An interstate
5
wire transmission is “for the purpose of executing” the scheme to defraud if it is
“incident to an essential part of the scheme” or “a step in the plot.” Id. at 1272-73
(quotations omitted).
In order to convict someone of misapplying funds as a credit union
employee, the government must prove: 1) the defendant was an employee of the
credit union, 2) he willfully misapplied funds intrusted to the credit union’s care,
3) he acted with intent to injure or defraud the credit union, and 4) the credit
union’s accounts were insured by the National Credit Union Administration
Board. 18 U.S.C. § 657; see United States v. Payne, 750 F.2d 844, 855 (11th Cir.
1985) (setting forth the elements of misapplying bank funds under 18 U.S.C.
§ 657).
The evidence was sufficient for a reasonable jury to conclude that Telfair,
who was the President of FAMU FCU, knowingly and willfully stole at least
$134,000.00 in grant funds belonging to FAMU, which FAMU had entrusted to
the care of FAMU FCU, and further, that Telfair conspired with his codefendant to
steal those funds and to commit wire fraud.
The evidence showed that the grant documents provided for consulting
services with FAMU FCU, not with any individual consultant, and that HUD
approved FAMU FCU as the vendor and the custodian of the MLP under the grant
6
agreement. FAMU’s purchasing director and general counsel approved and
officially executed the CSA, which provided for the $150,000.00 payment at issue,
based upon their belief that the agreement was with FAMU FCU, not Telfair.
Although the CSA listed Telfair as the payee, there was testimony that, because
Telfair was the President of FAMU FCU, he would have been the person to sign
the contract on behalf of FAMU FCU. After checking the grant documents for
compliance, Toletha Sylvester Harris approved a requisition order for a payment
of the $150,000.00 to FAMU FCU. Dr. Gray-Ray, who had approved and signed
the CSA, completed a purchase exemption for “Contractual services with FAMU
Federal Credit Union.” Thereafter, FAMU issued a check made payable to
FAMU FCU, not Telfair, for $150,000.00, which Telfair endorsed on behalf of
FAMU FCU and deposited into the “CCEDI-FAMU Urban Policy Grant” account.
The evidence showed that the account had been used as a depository for grant
funds, including funds used to secure micro-loans under the MLP. There was no
evidence of any other account which also held FAMU’s grant funds.
The evidence further showed that, after Telfair deposited the $150,000.00
check into the grant account, he withdrew $15,000.00, or 10% of the deposit, as
his fee for administering the MLP, and deposited it into his personal bank account.
The ten percent fee was provided for in the CSA, as well as the agreement under
7
which FAMU FCU had administered the MLP under the prior HUD grant. The
evidence showed that Telfair always withdrew an amount equivalent to roughly
ten percent of each of the grant deposits, which was consistent with the
administrative fee the parties had agreed to. Telfair did not claim the $150,000.00
on his income tax return in 2004, 2005, 2006, 2007, or 2008. Based on this
evidence, it was reasonable for the jury to conclude that the $150,000.00 at issue
belonged to FAMU and not Telfair.
Furthermore, although Telfair claims that FAMU made a mistake when it
issued the check to FAMU FCU instead of him individually, he did not ask FAMU
to re-issue the check in his name so that he could deposit the money into his
personal Morgan Stanley account, as he had done previously with the legitimate
fees he received for administering the MLP. Also, Telfair waited almost four
years before attempting to access the funds, after McGill, the individual who
signed the CSA on behalf of FAMU, had pled guilty to criminal conduct relating
to her mismanagement of grant funds. Finally, as discussed below, the evidence
supported that instead of just withdrawing the money Telfair claimed already
belonged to him pursuant to the CSA, as discussed below, Telfair conspired with
Nixon to draft three fraudulent “contracts” in order to facilitate and conceal their
scheme to steal the grant money remaining in the account. Based on this
8
evidence, it was reasonable for the jury to conclude that the $150,000.00 at issue
belonged to FAMU and not Telfair.
The evidence was also sufficient for a reasonable jury to find that Telfair
and Nixon conspired to steal and actually stole approximately $134,000.00 in
grant funds belonging to FAMU. Although, as discussed above, the evidence
supported that the $150,000.00 in the CCEDI-FAMU account at issue did not
belong to Telfair, the evidence also showed that, from 2004 to 2008, Telfair
caused the TIN on the CCEDI-FAMU grant account to be changed multiple times,
with the final TIN being his own SSN. He also altered the signature cards for the
account, eventually listing himself and Nixon as the authorized signors, which
gave them the ability to write checks to one another until they depleted the
account’s funds. Even though Telfair and Nixon, as signors on an account
bearing their SSNs, had gained access to the funds in the CCEDI-FAMU account,
the evidence showed that they drafted multiple false contracts in an attempt to
facilitate and conceal their theft of the remaining grant funds in the CCEDI-
FAMU account.
On June 24, 2008, Telfair signed an agreement with Nixon, who signed on
behalf of the Institute, which purported to entitle Telfair to seven percent of the
funds remaining in the CCEDI-FAMU account. Pursuant to his agreement with
9
the “Institute,” Telfair was to continue administering the MLP, and he was to
provide several listed documents related to the MLP. However, the evidence
showed that (1) the grant was closed on November 28, 2006, and there were no
new grant funds; (2) the last loan check under the Institute’s MLP was distributed
on August 21, 2007; and (3) Telfair had already provided the same MLP
documents under two previous contracts. The evidence showed that Telfair then
e-mailed Nixon another copy of the June 24, 2008 contract, reflecting a change in
the contract’s payment terms from seven, to five percent, of the account balance.
The e-mail also contained a post-dated invoice in which Telfair purported to bill
the Institute for his administration of the MLP through June 30, 2008. Thereafter,
on June 28, 2008, Nixon wrote Telfair a check representing five percent of the
CCEDI-FAMU account balance, pursuant to the invoice under the new contract.
Ultimately, Nixon wrote Telfair two checks from the “CCEDI-FAMU Urban
Policy Grant” account, which together totaled an amount exactly equal to seven
percent of the balance of the grant account. Based on this, the evidence was
sufficient for a reasonable jury to conclude that Telfair and Nixon created a false
contract with the Institute, as well as an invoice pursuant to the “contract,” in
order legitimize Telfair’s theft of funds he knew belonged to FAMU. Moreover, if
the money already belonged to Telfair under the CSA, as he asserts on appeal, he
10
would not have needed to create the contract under which he invoiced the Institute
in order to “justify” his taking the funds
The evidence further supported that Telfair and Nixon created two more
fraudulent contracts in an attempt to facilitate and conceal their theft of funds they
knew belonged to FAMU. The evidence showed that, at some point, Telfair and
Nixon signed the “addendum” referring to Telfair and Nixon as “plan
administrators” and providing that they were “responsible for the day-to-day
administration of the Micro-Loan Program as independent contractors,” for which
they were “eligible to collect administrative fees from the balance remaining.”
Also, in November 2008, Telfair and Nixon signed a “personal services contract,”
under which Nixon was to work in conjunction with Telfair to monitor the existing
MLP and develop new programs. Payment for these services was to come from
“administration and/or pool funds remaining after the liquidation of any loan
offsets, charge-offs.” Approximately 1 month later, Telfair and Nixon wrote
checks to one another for $60,067.55, which they each deposited into their
personal bank accounts.
The evidence supported that these contracts involved (1) duplication of
products and services, which were largely unnecessary, or had already been
completed or authorized under previous contracts; (2) payment of an amount that
11
was inconsistent with the value of the services provided; and (3) vague obligation
and payment terms. Accordingly, taking the evidence in the light most favorable
to the government, the evidence was sufficient for a reasonable jury to conclude
that Telfair and Nixon conspired to steal and actually stole at least $134,000.00 in
grant funds belonging to FAMU. Moreover, as discussed above, if the money
remaining in the CCEDI-FAMU account already belonged to Telfair under the
CSA, as he argues on appeal, Telfair and Nixon would not have had to draft these
“contracts” in an attempt to establish their right to the funds.
As to Telfair’s argument that the government failed to prove certain
elements of each of the crimes charged, as discussed below, the record indicates
that there was sufficient evidence as to each of those essential elements such that a
reasonable jury could find that Telfair was guilty beyond a reasonable doubt.
As to the conviction for conspiracy to steal funds from FAMU, Telfair’s
argument that he could not conspire to steal funds that belonged to him fails
because, as discussed above, the evidence was sufficient for a reasonable jury to
conclude that the funds at issue did not belong to Telfair. Moreover, as previously
discussed, there was sufficient evidence that Telfair and Nixon conspired to create
contracts purporting to establish their entitlement to funds that they knew did not
belong to them, and that they wrote checks to one another in order to obtain those
12
funds.
As to Telfair’s argument that the evidence was insufficient to prove that he
conspired with Nixon to commit wire fraud, the evidence showed that Telfair sent
two e-mails to Nixon in order to facilitate the fraudulent scheme to steal FAMU’s
funds. As discussed above, the first e-mail transmitted the fraudulent June 24,
2008, contract and the invoice billing the Institute for Telfair’s services, through
which Telfair and Nixon attempted to legitimize their theft of FAMU’s grant
funds. Additionally, in the second e-mail, Telfair asked Nixon for the FAMU
Small Business Development Center’s TIN, with which Telfair also sought to
legitimize his fraudulent activity. Accordingly, these e-mails were sufficient
evidence on which a reasonable jury could conclude that Telfair conspired with
Nixon to commit wire fraud, as he caused to be transmitted in interstate commerce
communications by wire for the purpose of executing a fraudulent scheme to steal
funds belonging to FAMU. 18 U.S.C. § 1343.
As to Telfair’s conviction for stealing funds belonging to FAMU, the
evidence was sufficient for a reasonable jury to conclude that the funds belonged
to FAMU. Contrary to Telfair’s assertions, as previously discussed, the evidence
was sufficient to establish that the $150,000.00 belonged to FAMU, as opposed to
any other entity, including Telfair. Taking the evidence in the light most favorable
13
to the government, HUD originally awarded the grant money to FAMU. Pursuant
to the grant agreement, FAMU contracted with FAMU FCU to establish the MLP.
Then, FAMU entrusted FAMU FCU with the funds in order to secure loans
FAMU FCU provided under the MLP. The $150,000.00 check at issue was drawn
from FAMU’s account, and it was deposited into FAMU’s grant account at FAMU
FCU. There was no evidence that the $150,000.00 was used to cover defaulted
micro-loans such that FAMU FCU was entitled to the money, and as previously
discussed, sufficient evidence supported that Telfair and Nixon in fact stole the
funds in question. Accordingly, the evidence was sufficient for a reasonable jury
to find that the funds rightfully belonged to FAMU, which had entrusted the funds
to the care of FAMU FCU before the funds were stolen.
As to Telfair’s argument that the government failed to prove that he was
acting as an agent of FAMU, the argument fails because the evidence supported
that (1) Telfair was authorized to act on behalf of FAMU in administering the
MLP, including using FAMU’s money to secure micro-loans which Telfair
informed loan recipients were FAMU micro-loans; (2) Telfair held himself out as
the administrator of the MLP for FAMU; (3) Telfair was authorized to sign and
did sign a contract on behalf of FAMU for the virtual incubator, wherein Telfair
was listed as the micro-loan Administrator “representing, and for the benefit of,
14
the INSTITUTE” at FAMU. Because 18 U.S.C. § 666(d)(1) specifically provides
that a representative is an agent, the evidence was sufficient for a reasonable jury
to find that Telfair acted as an agent of FAMU.
Regarding Telfair’s conviction for stealing funds as a credit union
employee, Telfair argues that the government failed to prove that he “knowingly
and willfully” stole the funds entrusted to the care of FAMU FCU, because he was
contractually entitled to the $150,000.00. However, as discussed above, there
was sufficient evidence on which a reasonable jury could rely to conclude that
Telfair was not entitled to the $150,000.00 payment, and further, that he
knowingly and willfully stole those funds. Taking the evidence in the light most
favorable to the government, the evidence showed that the $150,000.00 FAMU
entrusted to the care of FAMU FCU remained in the grant account, and because
Telfair knew that he could not withdraw the funds belonging to FAMU FCU, he
conspired with Nixon to draft three contracts purporting to establish Telfair’s and
Nixon’s right to the funds, and then they wrote checks to one another from the
grant account. The evidence supports the conclusion that those contracts would
have been unnecessary if the funds already belonged to Telfair, or even if he had a
good faith belief that they did. Instead, Telfair presented to Hursey the
“addendum” that he and Nixon had signed in order to try and convince her that the
15
funds were his. Telfair even told Hursey that the grant account was his, after he
had changed the account’s TIN to his SSN, and caused the account’s signature
cards to be changed so that he and Nixon could write one another checks from the
grant account. Accordingly, the evidence was sufficient to establish that Telfair
knowingly and willfully stole money entrusted to FAMU FCU.
Additionally, the evidence was sufficient to establish that Telfair intended
to injure or defraud FAMU FCU, as the evidence showed that FAMU FCU
approved of Telfair’s administration of the MLP, and his receipt of fees, but not of
his theft of over $134,000.00 in grant funds FAMU had entrusted to its care.
Accordingly, the evidence was sufficient for a reasonable jury to conclude that
Telfair’s knowing and willful theft of funds entitled to FAMU FCU’s care was
consistent with an intent to injure and defraud. Accordingly, we affirm as to this
issue.
Because the evidence was sufficient for a reasonable jury to conclude that
the $150,000.00 did not belong to Telfair, and that he and Nixon conspired to steal
and actually stole at least $134,000.00 from the grant account, this Court should
affirm as to this issue.
II. The loss amount attributed to Telfair at sentencing under
16
U.S.S.G. § 2B1.1(b)(1)
Regarding the amount of loss attributed to him at sentencing, Telfair argues
that the actual loss should have been $32,179.66, which represents the
$150,000.00 in grant funds at issue, minus $51,149.62 for legitimate withdrawals,
and $66,670.72 for funds Telfair and his codefendant pledged towards restitution.
Accordingly, because the loss amount should have been $32,179.66, there should
only have been a 6-level increase to his base offense level under § 2B1.1(b)(1),
instead of the 10-level increase the district court applied.
We review the district court’s fraud loss calculation at sentencing for clear
error. United States v. Renick, 273 F.3d 1009, 1025 (11th Cir. 2001). Pursuant to
U.S.S.G. § 2B1.1(b)(1), if the loss amount from a fraud was more than
$120,000.00, but not more than $200,000.00, the offense level is increased by 10
levels. The district court must make a reasonable estimate of the loss amount,
which is the greater of the actual loss or the intended loss. United States v.
Hoffman-Vaile, 568 F.3d 1335, 1343 (11th Cir. 2009) (citing U.S.S.G. § 2B1.1,
comment (n.3(A))). The Guidelines define the “actual loss” as “the reasonably
foreseeable pecuniary harm that resulted from the offense.” U.S.S.G. § 2B1.1,
comment. (n.3(A)(i)). In calculating the loss amount, the commentary to § 2B1.1
states that the loss shall be reduced by “[t]he money returned, and the fair market
17
value of the property returned and the services rendered, by the defendant or other
persons acting jointly with the defendant, to the victim before the offense was
detected.” U.S.S.G. § 2B1.1, comment. (n.3(E)(i)). The district court’s estimate
of the loss need only be reasonable. Renick, 273 F.3d at 1025; U.S.S.G. § 2B1.1,
comment. (n.3(C)). Because the sentencing judge is in a unique position to assess
the evidence and estimate the loss based upon that evidence, the district court’s
loss determination is entitled to appropriate deference. See U.S.S.G. § 2B1.1,
comment. (n.3(C)); see also United States v. Miller, 188 F.3d 1312, 1317 (11th
Cir. 1999).
Here, the district court did not clearly err when it determined that Telfair
was responsible for an actual loss between $120,000.00 and $200,000.00, and
thus, that the 10-level enhancement was appropriate. Based on the findings of the
jury, which as previously discussed, were supported by sufficient evidence, as well
as the PSI and the evidence presented at sentencing, the district court’s
determination of the loss attributable to Telfair is a reasonable estimate of the loss,
and thus not clearly erroneous.
First, as discussed above, the evidence supports the district court’s finding
that Telfair and Nixon stole at least $134,000.00 in grant funds belonging to
FAMU, as they knowingly deposited 4 checks from FAMU’s grant account,
18
totaling approximately $134,000.00, into their own personal bank accounts, even
though they knew that they were not entitled to the money. Next, the evidence
supports the finding of the district court that a total of at least $300,000.00 in grant
funds was deposited into the account, all of which Telfair and Nixon could have
stolen. As such, the district court properly rejected Telfair’s assertion that the
baseline for calculating the loss amount was the $150,000.00 check Telfair argued
that he was entitled to. Accordingly, the district court properly rejected Telfair’s
assertion that the loss amount should have been reduced by the amount of
legitimate withdrawals from the account, as account funds other than those Telfair
and Nixon stole were available to cover those legitimate withdrawals. Moreover,
the district court correctly pointed out that the evidence showed that there were
cancelled checks in the amount that Telfair and Nixon stole from the account,
which was approximately $134,000.00, regardless of whether any other
withdrawals were legitimate. Finally, the district court correctly rejected Telfair’s
assertion that the loss amount should be reduced by the amount Telfair and Nixon
pledged in restitution, because the Guidelines suggest that the loss amount shall
only be reduced by the money returned before the offense was detected.
U.S.S.G. § 2B1.1, comment. (n.3(E)(i)). Accordingly, because there is no
evidence that Telfair or Nixon returned any money before their offenses were
19
detected, we affirm as to this issue.
III. The two-level enhancement pursuant to U.S.S.G. § 3B1.3 for
abusing a position of trust
Telfair asserts that he should not have received a two-level increase for
abusing a position of trust under § 3B1.3, because he did not abuse a position of
trust with respect to FAMU, which was the victim in the case. Telfair asserts that
any abuse of his position as president of FAMU FCU did not affect FAMU.
Further, his position did not aid or conceal his offense. Finally, Telfair argues that
the enhancement should not be applied so broadly that it includes every instance
of fraud.
We review for clear error a district court’s factual determination at
sentencing that a defendant abused a position of trust, but we review de novo the
district court’s resolution of the legal issue of whether the defendant’s conduct
justifies the abuse-of-trust enhancement. United States v. Garrison, 133 F.3d 831,
837 (11th Cir. 1998). A defendant is subject to a two-level enhancement of his
offense level at sentencing if he “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.” U.S.S.G. § 3B1.3. A position of trust is
characterized by professional or managerial discretion, and a person occupying a
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position of trust ordinarily receives less supervision than an employee whose
responsibilities are non-discretionary in nature. U.S.S.G. § 3B1.3 comment. (n.1).
In order for the abuse-of-trust enhancement to apply, the defendant must have
been in a position of trust with respect to the victim of the crime. Garrison, 133
F.3d at 837. Thus, the defendant must have “abused discretionary authority
entrusted to [him] by the victim.” Id. at 839 (quotation and emphasis omitted).
“The determination of whether a defendant occupied a position of trust is
extremely fact sensitive.” United States v. Ghertler, 605 F.3d 1256, 1264 (11th
Cir. 2010) (quotation omitted). “The relationship between the defendant and the
victim must be more significant than that of an arm’s-length business transaction.”
United States v. Harness, 180 F.3d 1232, 1236 (11th Cir.1999). In the fraud
context, § 3B1.3 applies where, among other situations, a fiduciary or personal
trust relationship exists with another entity or entities and the defendant takes
advantage of the relationship to perpetrate or conceal the offense. Garrison, 133
F.3d at 837-38.
Here, the district court did not clearly err when it determined that Telfair
occupied a position of trust with FAMU, which he used to commit his crimes and
conceal them, and thus the two-level enhancement for abuse of a position of trust
was appropriate. First, the district court did not clearly err in finding that Telfair
21
occupied a position of trust with respect to the victim in this case, which was
FAMU, because the evidence showed that FAMU gave Telfair discretion to
administer and run the MLP, and to disburse its grant funds. The district court
also did not clearly err in determining that Telfair’s position of trust with respect
to FAMU involved a significant amount of managerial discretion, as Telfair was
responsible for developing and administering the MLP, including determining
who qualified for the micro-loans and actually disbursing FAMU’s grant funds. A
review of the record also indicates that Telfair was an agent and representative of
FAMU, as he had authority to contract on its behalf. Additionally, it appears that
(1) Telfair made changes to the account and maintained the records regarding the
status of the loans, and (2) as a signatory on the account, Telfair determined
whether FAMU’s grant money, which was held in an account at the credit union
where Telfair was President, would be used to cover defaulted loans. The
evidence also showed that FAMU placed such extreme trust in Telfair, despite the
concerns of the AGO, that it essentially took him at his word when he told FAMU
that the account holding its remaining grants funds actually belonged to him.
Thus, the district court did not clearly err in finding that Telfair abused his
position of trust with FAMU in order to commit his crimes and conceal them, and
it correctly applied the enhancement under § 3B1.3. Accordingly, we affirm as to
22
this issue.
Conclusion
The evidence was sufficient for a reasonable jury to find Telfair guilty on
each of the charged offenses. Also, the district court calculated a reasonable fraud
loss amount, and it did not clearly err in concluding that the two-level
enhancement for abuse of a position of trust was appropriate in this case.
Accordingly, we affirm Telfair’s convictions and sentences.
AFFIRMED.
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