United States v. Doyle Koehn ( 1996 )

LUCERO, Circuit Judge.

Appellant Doyle Koehn entered guilty pleas in the United States District Court for the District of Colorado to one count of wire fraud, 18 U.S.C. § 1343, and one count of making a false statement to the Department of Housing and Urban Development, 18 U.S.C. § 1010. The district court calculated Appellant’s sentence under the United States Sentencing Guidelines. The adjusted offense level of eighteen included a two level enhancement for abuse of a position of trust. USSG § 3B1.3. The sole issue on appeal is whether the district court was warranted in applying the abuse of a position of trust enhancement. We affirm.

BACKGROUND

In July, 1991, Appellant was the president of Executive Mortgage, Inc. (“Executive Mortgage”), a Colorado business engaged in originating and refinancing residential mortgages and selling them on the secondary market. Appellant also controlled Real Estate Escrow and Closing Services, Inc. (“Escrow Closing Services”). Appellant used Escrow Closing Services to close mortgages originated by Executive Mortgage. Both companies shared the. same office space.

In a typical transaction, Executive Mortgage would originate and sell a secured residential loan to a mortgage servicing company. Once the mortgage servicing company decided to buy the mortgage loan from Executive Mortgage, it would deliver funds to Escrow Closing Services. These funds were intended to be held in escrow and disbursed to pay off existing mortgages. When the existing mortgages were satisfied, new notes and related papers were forwarded to the buyer.

On or about July 8, 1991, Appellant telephoned a mortgage trader employed by U.S. Mortgage Servicing Corporation, located in St. Petersburg, Florida, and offered to sell thirteen FHA and VA insured residential mortgage loans. The next day Appellant had preliminary paperwork on the mortgages delivered to U.S. Mortgage so it could inspect the loan packages Appellant proposed to sell. Between July 9 and July 12,1991, U.S. Mortgage agreed to purchase all thirteen loan packages. On July 12, pursuant to Appellant’s instructions, U.S. Mortgage wired $882,550.76 to Escrow Closing Services’ account at the First National Bank of Southeast Denver. The purpose of wiring the funds was to pay off the existing mortgages on the thirteen loans U.S. Mortgage had agreed to buy.

That same day, Appellant misappropriated about $725,000 of these funds for the purpose of satisfying unrelated and independent obligations of Executive Mortgage. Several days later, Tina Sokol, an employee of U.S. Mortgage, called Appellant, inquiring why the loan packages had not been sent. Appellant informed Ms. Sokol that the loans were not due until later that month but that they would be sent in the near future. By July 22, Appellant had misappropriated the remaining funds wired to Escrow Closing Services by U.S. Mortgage. Appellant never delivered the thirteen loan packages to U.S. Mortgage. In fact, he sold the same loan packages to another mortgage servicing company. As a result of Appellant’s fraud, U.S. Mortgage was driven out of business.

After Appellant’s fraud was discovered, he was charged with and pled guilty to violating 18 U.S.C. § 1343, wire fraud. In the government’s Information, filed August 19, 1994, it is clear that the predicate wire fraud act occurred when “Koehn transmitted and caused to be transmitted by means of wire communication in interstate commerce ... a wire transfer of funds ... from U.S. Mortgage Servicing Corporation in St. Peters-burg, Florida, to the account of Real Estate Escrow and Closing Service, Inc., at First National Bank of Southeast Denver.” The district court calculated a twenty-seven month sentence under the Guidelines, based on an adjusted offense level of eighteen. The sentence was the lowest permitted within the guideline range. The offense level determination included a two level enhancement under USSG 3B1.3, for abuse of a position of trust. Without the enhancement, Appellant would have been eligible to a sentence reduction of up to five months. At the sentencing hearing, Appellant objected to the two level enhancement, claiming that he did not occupy a position of trust. On appeal, he renews his objection.

DISCUSSION

The Appellant argues that the district court improperly enhanced his sentence because he did not occupy a position of trust with respect to U.S. Mortgage. According to Appellant, a position of trust was never created because he and his customer were sophisticated merchants involved in an arms-length commercial transaction. The district court determined that Appellant’s control over the escrow accounts facilitated his crime in a way that could not have been done by others, and increased the sentence accordingly. Whether a defendant occupied a position of trust within the meaning of USSG § 3B1.3 is a factual question, and we will affirm the sentencing court unless we find its decision clearly erroneous. United States v. Queen, 4 F.3d 925, 928 (10th Cir.1993), cert. denied, U.S. -, 114 S.Ct. 1230, 127 L.Ed.2d 575 (1994).

Guidelines section 3B1.3 states: “If the defendant abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense, increase by two levels.” Persons who abuse a position of trust to facilitate committing an offense are generally considered more culpable. USSG § 3B1.3, Background Note. “ ‘Public or private trust’ refers to a position of public or private trust characterized by professional or managerial discretion.” USSG § 3B1.3, Application note 1. Examples of behavior satisfying the enhancement include embezzlement of a client’s funds by an attorney acting as a guardian, and a bank executive’s fraudulent loan scheme. Id. “For this enhancement to apply, the position of trust must have contributed in some significant way to facilitating the commission or concealment of the offense.” Id.

In the fraud context, we have applied § 3B1.3 in two types of cases. The first is where the defendant steals from his employer, using his position in the company to facilitate the offense. See, e.g., United States v. Levy, 992 F.2d 1081 (10th Cir.1993) (official of bankrupt company embezzled from company, defrauding trustee and company’s creditors); United States v. Chimal, 976 F.2d 608 (10th Cir.1992) (embezzlement by company comptroller), cert. denied, 507 U.S. 938, 113 S.Ct. 1331, 122 L.Ed.2d 715 (1993). The second is where a “fiduciary or personal trust relationship exists” with other entities, and the defendant takes advantage of the relationship to perpetrate or conceal the offense. United States v. Brunson, 54 F.3d 673, 677 (10th Cir.), cert. denied, — U.S. -, 116 S.Ct. 397, 133 L.Ed.2d 317 (1995). This case clearly belongs in the second category.

The primary concern of § 3B1.3 is to penalize defendants who take advantage of a position that provides them freedom to commit or conceal a difficult-to-detect wrong. Queen, 4 F.3d at 929-30. In every successful fraud the defendant will have created confidence and trust in the victim, but the sentencing enhancement is not intended to apply in every case of fraud. Brunson, 54 F.3d at 678. In analyzing whether § 3B1.3 applies in a “fiduciary or personal trust” situation, we must carefully distinguish between those arms-length commercial relationships where trust is created by the defendant’s personality or the victim’s credulity, and relationships in which the victim’s trust is based on defendant’s position in the transaction. Only in the latter does defendant’s position enable him to commit or conceal the fraud, or significantly facilitate the offense. It follows that not every misuse of a fiduciary relationship will subject a defendant to the enhancement; he must either occupy a “formal position of trust” or create sufficient indicia that he holds such a position that it is appropriate to hold him so accountable. Queen, 4 F.3d at 929 n. 3.

In Queen, for example, the defendant was the president of an investment brokerage firm specializing in precious metals. The firm, at defendant’s instruction, solicited investments that defendant then diverted to his personal use. Defendant continued to conceal the crime by directing the firm to send out phony profit statements to investors. The court found that the company, by setting itself out as an advisor/broker to its victims, allowed the defendant to occupy a formal position of trust, and gave him the freedom to commit a difficult-to-detect wrong. Id. at 929-30. See also United States v. Lowder, 5 F.3d 467, 473 (10th Cir.1993) (finding that the president of a bogus financial company who was entrusted with the ability to spend the investors’ money without any oversight held a position of trust).

The facts of Queen are analogous to the instant case. Here, Appellant used his position of control in Escrow Closing Services to defraud his victim. Appellant was able to facilitate the fraud by lulling U.S. Mortgage into believing the $882,000 was safe because the transfer was to an escrow account. Appellant was later able to conceal the fraud from U.S. Mortgage because of its continuing belief that the money had been transferred into an escrow relationship, protected by a fiduciary. See generally Schoepe v. Zions First Nat. Bank, 750 F.Supp. 1084, 1088 (D.Utah 1990) (an “escrow agent owes a fiduciary duty to all parties to the escrow agreement”), aff'd without opinion, 952 F.2d 1401 (10th Cir.1992). Appellant’s ability to misappropriate funds from the escrow account arose because of his control of Escrow Closing Services; his unlimited discretion over these funds enabled him to remove them from the escrow account and breach Escrow Closing Serviees’s fiduciary duty to U.S. Mortgage. Although, strictly speaking, the fiduciary relationship here was between Escrow Closing Services and U.S. Mortgage, the district court correctly found that Appellant’s complete control over Escrow Closing Services put him in a position to abuse the formal trust it had created with the victim. See Lowder, 5 F.3d at 473 (finding defendant’s position as president of the defrauding investment company allowed him to misappropriate funds, putting him in a position of trust).

CONCLUSION

The district court’s determination that Appellant occupied a position of trust is not clearly erroneous, and the enhancement is appropriate. AFFIRMED.