United States v. Maher ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4394
ROBERT I. MAHER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael, Jr., Senior District Judge.
(CR-97-1)
Submitted: September 29, 1998
Decided: October 29, 1998
Before WIDENER and MURNAGHAN, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Timothy Stephen Coyne, FOWLER, GRIFFIN, COYNE & COYNE,
P.C., Winchester, Virginia, for Appellant. Robert P. Crouch, Jr.,
United States Attorney, Jean Barrett Hudson, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Robert I. Maher ("Maher") pled guilty to bank fraud, in violation
of 18 U.S.C. § 1344 (1994). The district court sentenced him to thir-
teen months imprisonment, but stayed the execution of the sentence
pending resolution of this appeal. Maher contends that the district
court incorrectly enhanced his base offense level pursuant to U.S.
Sentencing Guidelines Manual § 2F1.1(b)(3)(A) (1997) for misrepre-
senting that he acted "on behalf of" an educational organization.
Because we hold that Maher's writing of fictitious checks on the bank
accounts of the educational organizations constitutes conduct which
falls within the scope of § 2F1.1(b)(3)(A), we affirm.
Maher is the founder of the American Blue and Gray Association
("ABGA), a 1,100 member national organization which sponsors
seminars on the Civil War. In 1991, he opened a checking account in
ABGA's name at the Bank of Clarke County in Berryville, Virginia.
Maher was authorized to write checks on that account.
In 1994, Maher formed the Civil War Educational Association
("CWEA") to act as a co-sponsor of ABGA events. He established a
checking account in the name of CWEA at Farmers & Mechanics
("F&M") Bank in Winchester, Virginia. Maher was authorized to
write checks on that account as well.
In early 1995, Maher lost approximately $14,000 conducting a
Civil War symposium in Arlington, Virginia. To cover this loss,
Maher began writing checks back and forth between the ABGA and
CWEA accounts to inflate the balances in those accounts. Between
April and July 1995, Maher wrote ninety-three checks on the CWEA
account at the F&M Bank, and seventy-nine checks on the ABGA
account at the Bank of Clarke County. As a result of this "check-
kiting" scheme, which eventually collapsed, the Bank of Clarke
County suffered a loss of $37,157.47.
2
Maher pled guilty to one count of bank fraud in violation of 18
U.S.C. § 1344 (1994). At sentencing, the district court enhanced
Maher's base offense level by two pursuant to § 2F1.1(b)(3)(A), and
sentenced him to thirteen months imprisonment. The district court
stayed execution of Maher's sentence pending resolution of this
appeal.
Section 2F1.1(b)(3)(A) provides for a two level increase "[i]f the
offense involved . . . a misrepresentation that the defendant was acting
on behalf of a charitable, educational, religious or political organiza-
tion, or a government agency . . . ."1 The Commentary to § 2F1.1 pro-
vides the following examples of conduct to which this enhancement
applies:
a group of defendants who solicit contributions to a non-
existent famine relief organization by mail, a defendant who
diverts donations for a religiously affiliated school by tele-
phone solicitations to church members in which the defen-
dant falsely claims to be a fund-raiser for the school, or a
defendant who poses as a federal collection agent in order
to collect a delinquent student loan.2
In addition, the Background to § 2F1.1 states that, "[u]se of false pre-
tenses involving charitable causes and government agencies enhances
the sentences of defendants who take advantage of victims' trust in
government or law enforcement agencies or their generosity and char-
itable motives."3 Maher asserts that, read together, the guideline, com-
mentary, and background indicate that the enhancement is only
applicable to situations in which a defendant: (1) misrepresents his
own authority to act on behalf of a particular organization, (2) in
order to take advantage of a victim's trust in government or charitable
motives. He claims that, in the instant case, the district court erred in
applying the enhancement because he did not misrepresent his author-
ity to act on behalf of the educational organizations and did not
exploit the generosity and charitable motives of the bank or under-
mine confidence in government.
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1 USSG § 2F1.1(b)(3)(A).
2 USSG § 2F1.1, comment. (n.4).
3 USSG § 2F1.1, comment. (backg'd).
3
Maher relies on the Tenth Circuit's decision in United States v.
Frazier.4 In Frazier, the Tenth Circuit held that:
the conduct intended to fall within the scope of[§ 2F1.1] is
exploitative conduct which induces victims to act upon their
charitable or trusting impulses due to the defendant's
misrepresentation that he has authority to act on behalf of a
charitable, educational, religious or political organization or
a government agency.5
This reading of § 2F1.1 requires both a misrepresentation of the
defendant's authority to act and exploitation of a victim's charitable
or trusting impulses.
This circuit, however, has not interpreted § 2F1.1 in such a narrow
fashion. In United States v. Achiekwelu, 6 the defendant was involved
in a fraudulent scheme; an essential element of the scheme was the
defendant's misrepresentation that he worked for the Nigerian
Finance Ministry. The issue before this court was whether a
§ 2F1.1(b)(3)(A) enhancement applied to a defendant who misrepre-
sented that he acted on behalf of a foreign government. We held that
the enhancement applied. Similarly, in United States v. Marcum,7 the
defendant was a deputy sheriff and president of the Logan County
Deputy Sheriff's Association ("LCDSA"), a charitable organization
which administered public bingo games. The defendant"skimmed"
ten percent of the proceeds from the bingo games, distributing the
money to deputies who worked the games, including himself. We
upheld the two level enhancement under § 2F1.1(b)(3)(A), stating that
the defendant "misrepresented to the public that he was conducting
the bingo games wholly on behalf of the LCDSA," when, in fact, "he
was acting in part for himself and his fellow deputies."8
Achiekwelu and Marcum make two points clear. First, if a defen-
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4 53 F.3d 1105 (10th Cir. 1995).
5 Frazier, 53 F.3d at 1113.
6 112 F.3d 747 (4th Cir. 1997).
7 16 F.3d 599 (4th Cir. 1994).
8 Marcum, 16 F.3d at 603.
4
dant misrepresents his authority to act on behalf of a particular orga-
nization, as in Achiekwelu, then an enhancement under
§ 2F1.1(b)(3)(A) is available. Second, a § 2F1.1(b)(3)(A) enhance-
ment is available even if the defendant does not misrepresent his
authority to act on behalf of a particular organization. Rather, if a
defendant misrepresents that he is conducting an activity wholly on
behalf of a particular organization, yet is actually acting for himself,
as in Marcum, the enhancement is still proper.
Applying the principles set forth in Achiekwelu and Marcum to the
facts in this case, we affirm the district court's application of the
enhancement. Although Maher did not misrepresent his authority to
act on behalf of the educational organizations because he had author-
ity to write the checks, this fact alone is not dispositive. Rather, we
find the circumstances in this case more akin to Marcum. The record
indicates that Maher's writing of fictitious checks on the bank
accounts of the educational organizations was for his personal inter-
est. Therefore, he misrepresented to the bank that he was conducting
these transactions wholly on behalf of ABGA and CWEA when he
was acting in part for himself.
Maher seeks to distinguish Marcum. First, Maher emphasizes that
Marcum involved misrepresentation to the public rather than a finan-
cial institution. However, we do not believe that such a distinction is
warranted. Nothing in the guideline, commentary, or background to
§ 2F1.1(b)(3)(A) suggests that application of the enhancement is
dependent upon who is the victim of the misrepresentation. Second,
Maher argues that the defendant in Marcum took advantage of the
generosity and charitable motives of the bingo playing public, while
Maher did not make any misrepresentation designed to exploit the
generosity and charitable motives of the banks. Once again, Maher's
support appears to be the Tenth Circuit's decision in Frazier, which
requires a showing of "exploitative conduct which induces victims to
act upon their charitable or trusting impulses," 9 and the background
to § 2F1.1, which states that "[u]se of false pretenses involving chari-
table causes and government agencies enhances the sentences of
defendants who take advantage of victims' trust in government or law
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9 Frazier, 53 F.3d at 1113.
5
enforcement agencies or their generosity and charitable motives."10
However, this is a question we need not address, since our case law
does not require such a finding in order to apply the enhancement.
Rather an enhancement pursuant to § 2F1.1(b)(3)(A) is appropriate if
a defendant misrepresents his authority to act on behalf of a particular
organization or a defendant misrepresents that he is conducting an
activity wholly on behalf of a particular organization, yet is really act-
ing for himself. Because Maher falls into the latter category, the dis-
trict court did not err.11
We affirm Maher's sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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10 USSG § 2F1.1, comment. (backg'd).
11 In further support of his argument, Maher discusses United States v.
Starr, 986 F.2d 281 (8th Cir. 1993). In Starr, the Eighth Circuit held that,
because the Government failed to show that the defendant misrepre-
sented that he was acting on behalf of a charitable organization, an
increase under § 2F1.1(b)(3)(A) was not appropriate. See 986 F.2d at
282-83. However, Starr lends no support for Maher's argument, because,
as we have stated, it is not necessary for a defendant to have misrepre-
sented that he had the authority to act for the enhancement to apply.
6