United States v. Lori Bradshaw , 670 F.3d 768 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1511
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L ORI B RADSHAW,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CR 600-1—Charles P. Kocoras, Judge.
A RGUED N OVEMBER 8, 2011—D ECIDED F EBRUARY 22, 2012
Before K ANNE, S YKES, and H AMILTON, Circuit Judges.
S YKES, Circuit Judge. While serving as an office
manager and executive assistant for a succession of
Chicago-area employers, Lori Bradshaw embezzled more
than $240,000 by making personal purchases on com-
pany credit cards, falsifying reimbursement claims for
business expenses, and depositing corporate checks in
her personal bank account. She pleaded guilty to one
count of wire fraud, see 18 U.S.C. § 1343, reserving the
2 No. 11-1511
right to challenge at sentencing the government’s recom-
mendation of a two-level increase for abuse of a posi-
tion of trust, see U.S.S.G. § 3B1.3. The district court ac-
cepted the government’s recommendation and applied
§ 3B1.3, which resulted in an advisory guidelines range
of 27 to 33 months. The court imposed a sentence of
27 months. Bradshaw appealed, reiterating her challenge
to the abuse-of-trust enhancement. We affirm.
I. Background
Bradshaw defrauded three Chicago-area employers
identified in the indictment and plea agreement as “Com-
pany A, Company B, and Company C.” From 2004 to
2007, she worked as an executive assistant and office
manager at Company A, a nonprofit organization. Her
duties included supervising executive assistants, pro-
viding administrative support to several staff members,
and coordinating purchases from vendors. Company A
also tasked Bradshaw with opening its new office in
downtown Chicago; Bradshaw was later given an award
commending her performance on this assignment.
Company A entrusted Bradshaw with a corporate credit
card for business expenses; notably, Bradshaw was not
required to submit invoices to the company supporting
her purchases. Bradshaw used the corporate credit card
to pay for personal items such as clothes, electronics,
and gifts. When the company began investigating
Bradshaw’s transactions, she submitted fake invoices
to conceal her theft. Bradshaw charged over $56,000 in
personal expenses to her Company A corporate credit
card.
No. 11-1511 3
From 2007 to 2010, Bradshaw worked as an executive
assistant to a vice-president at Company B, a financial-
services company. This company also issued Bradshaw
a corporate credit card for business purchases, and
again Bradshaw used the credit card to buy personal
items. Company B required Bradshaw to submit
invoices supporting her purchases, so to conceal her
theft, Bradshaw again manufactured fake invoices. She
also submitted phony reimbursement claims for business
expenses unconnected to the corporate credit card. In
addition, Company B entrusted Bradshaw with access to
her boss’s email account; using this access, she fraudu-
lently approved her own invoices. Bradshaw’s personal
purchases at this company totaled over $170,000.
Company B eventually discovered Bradshaw’s miscon-
duct, fired her, and reported the matter to federal law
enforcement. Meanwhile, however, Bradshaw obtained
a part-time job as an executive assistant at Company C,
a manufacturing company. Bradshaw continued her
fraudulent activity at this company by stealing corporate
checks and using them to deposit money into her
personal bank account. By the time her pattern of embez-
zlement was uncovered, Bradshaw had stolen over
$16,000 from Company C.
Bradshaw was indicted on several fraud counts and
eventually pleaded guilty to one count of wire fraud
pursuant to a plea agreement. Her presentence report
(“PSR”) recommended that she receive a two-level en-
hancement pursuant to U.S.S.G. § 3B1.3 for abusing
4 No. 11-1511
positions of trust at Company A and Company B.1 In
her plea agreement, Bradshaw reserved the right
to contest the § 3B1.3 enhancement. At sentencing she
argued that § 3B1.3 applies to fiduciaries, whereas
she was merely “a secretary with a fancy title.”
The district court disagreed and applied § 3B1.3. In the
court’s view, Bradshaw’s job titles were unimportant;
the enhancement was warranted because of the nature
of her relationships with superiors and their level of
trust in her. Specifically, the court found that: (1) Com-
pany A entrusted Bradshaw with opening its Chicago
office and gave her a corporate credit card with little
oversight, allowing her to perpetrate and conceal her
fraud; and (2) Company B granted Bradshaw access
to a vice-president’s email account, which enabled
Bradshaw to approve her own fraudulent invoices. The
court then imposed a sentence of 27 months, the bottom
of the advisory guidelines range.
II. Discussion
The sentencing guidelines call for a two-level increase
in offense level “[i]f the defendant abused a position of
public or private trust . . . in a manner that significantly
facilitated the commission or concealment of the of-
1
Because the PSR and Bradshaw’s plea agreement detailed her
conduct at all three companies, the enhancement would apply
if she abused a position of trust at any one of them. See
U.S.S.G. § 1B1.3(a).
No. 11-1511 5
fense.” U.S.S.G. § 3B1.3. “We review the district court’s
interpretation of § 3B1.3 de novo and its factual findings
for clear error.” United States v. Thomas, 510 F.3d 714, 725
(7th Cir. 2007). The enhancement applies if Bradshaw:
(1) occupied a position of public or private trust; and
(2) abused the position of trust to significantly facilitate
or conceal the commission of the crime. Id.Only the first element is at issue here. Bradshaw argues
that she did not occupy positions of trust because
her jobs were not “characterized by professional or mana-
gerial discretion (i.e., substantial discretionary judg-
ment that is ordinarily given considerable deference).”
U.S.S.G. § 3B1.3 cmt. n.1. Bradshaw compares herself to
“an ordinary bank teller or hotel clerk,” positions that
generally lack the characteristics of discretionary judg-
ment required for application of § 3B1.3. See id. Instead,
she describes herself as merely “an administrative
assistant without significant authority.”
We recently clarified, however, that the “common
thread” in our decisions upholding application of § 3B1.3
is “the victim’s special trust and reliance,” noting that “a
defendant’s authority over the victim’s valuables and the
degree of discretion given to the defendant by the victim are
simply indicia of” that trust. United States v. Fuchs, 635
F.3d 929, 935 (7th Cir. 2011) (emphasis added). Here, the
district court concluded that specific features of the
relationship between Bradshaw and her employers war-
ranted the enhancement. Specifically, Company A gave
Bradshaw the multi-faceted responsibility of opening
its Chicago office and subsequently commended her
6 No. 11-1511
performance. Moreover, Bradshaw was entrusted with
a corporate credit card for business expenses with
very little oversight, which facilitated her fraudulent
purchases. Company B also gave Bradshaw a corporate
credit card, as well as unfettered access to a vice-presi-
dent’s email account, which she used to approve her
own false invoices. Considering Bradshaw’s job titles
alone, this case would fall outside the outer boundaries
of § 3B1.3. But the district court’s findings about the
particular characteristics of her job responsibilities
support the conclusion that Bradshaw’s employers
“placed more than the ordinary degree of reliance on
[her] integrity and honesty.” Id.
Bradshaw’s argument resembles the one we rejected in
United States v. Cruz, 317 F.3d 763 (7th Cir. 2003). In Cruz
we upheld application of § 3B1.3 to an office manager
convicted of bank fraud for forging and cashing false
checks in the name of her employer and for misusing
her employer’s credit card. In so holding, we em-
phasized that “[e]mployees may hold a position of trust
even when they do not occupy upper-level or even super-
visory positions.” Id. at 767; see also United States v.
Tiojanco, 286 F.3d 1019, 1021-22 (7th Cir. 2002) (hotel
clerk occupied position of trust because he had primary
responsibility of issuing refunds to customers with
limited oversight); United States v. Hernandez, 231 F.3d
1087, 1090-91 & n.2 (7th Cir. 2000) (staff accountant occu-
pied position of trust because he had considerable
access to employer’s tax returns and was trusted by
supervisors). Like the employee in Cruz, Bradshaw “held
a position of limited authority” that she used to “earn[]
No. 11-1511 7
the trust of her supervisor[s] . . . so that [they] did not
question” the propriety of her purchases. Cruz, 317 F.3d
at 767.
We return to our standard of review, which requires
that we uphold the district court’s factual findings
unless they are clearly erroneous. Bradshaw’s case is
close to the outer boundaries of the abuse-of-trust en-
hancement under § 3B1.3. On this record, it would not
have been erroneous not to apply the abuse-of-trust
enhancement. In a case as close as this one, these are
matters for the district court’s judgment, which in any
event is not bound by the advisory sentencing guide-
lines. The district court did not clearly err by applying the
abuse-of-trust enhancement. The judgment is A FFIRMED.
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