United States v. Teresa Barringer

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4584
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TERESA BLANKENSHIP BARRINGER,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of Virginia, at
Abingdon. James P. Jones, Senior District Judge. (1:19-cr-00051-JPJ-PMS-1)
Argued: December 7, 2021 Decided: February 2, 2022
Before, WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Wilkinson
and Judge Niemeyer joined.
ARGUED: Gerald Thomas Zerkin, Richmond, Virginia, for Appellant. Jennifer R.
Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for
Appellee. ON BRIEF: Daniel P. Bubar, Acting United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
AGEE, Circuit Judge:
Teresa Blankenship Barringer challenges her convictions and 36-month sentence
for multiple counts of willful failure to collect or pay over taxes, in violation of 26 U.S.C.
§ 7202, and making materially false statements to federal agents, in violation of 18 U.S.C.
§ 1001. For the reasons set forth below, we affirm the judgment of the district court.
I.
A.
Barringer was the long-time Executive Vice President (“EVP”) and a Board
member of J&R Manufacturing, Inc. (“J&R”), a Virginia company that produced electrical
connectors for coal mining equipment. Her responsibilities as EVP included managing
J&R’s accounting, payroll, sales, and accounts receivable, while her duties as a Board
member included collecting and paying federal payroll taxes. Using Internal Revenue
Service (“IRS”) Form 941, these taxes are withheld from employees’ paychecks and paid
quarterly to the IRS along with a matching contribution from the employer (collectively,
“941 taxes”).
In late 2012, J&R began experiencing financial difficulties due to a downturn in the
coal market, and, by 2014, it was delinquent on filing and paying its 941 taxes. Barringer
subsequently received a letter from the IRS notifying her that she was civilly responsible
for the delinquent taxes. Fearing that personal liability, Barringer sought to access her
account in the company’s 401(k) retirement plan, administered by AXA Equitable
Insurance Company (“AXA”), as a source of funds from which to pay the 941 taxes.
2
Relevant here, to withdraw funds from a 401(k) plan before retirement age, the participant
must be vested 1 and must establish that a distributable event has occurred. Reaching
retirement or leaving employment is such a distributable event, as are certain types of
hardship (as referenced in the Code of Federal Regulations), such as to prevent foreclosure
on a primary residence.
In November 2014, Barringer faxed AXA a Hardship Withdrawal Request Form
requesting $311,859.04 from her 401(k) plan account “[t]o prevent eviction from a
principal residence or . . . a foreclosure of the mortgage on [her] principal residence” J.A.
144. Based on her representations, AXA approved the request, and Barringer deposited the
funds into a J&R account to pay the delinquent 941 taxes and keep the company afloat, so
that “[b]y 2015 . . . J&R [had] caught up on the 941 taxes.” J.A. 354. The AXA withdrawal
form contained the following warning:
Any person who knowingly and with an intent to injure, defraud, or deceive
any insurance company, files a statement of claim or an application
containing false, incomplete, or misleading information may be guilty of a
crime, which could result in imprisonment, fines, denial of insurance, and
civil damages.
J.A. 115. Further, according to bank records, Barringer’s mortgage balance was only
approximately $200,000 when she withdrew the funds from her 401(k) account, she was
on time with her payments, and she had not received any delinquent or foreclosure notices.
By 2016, J&R had again fallen behind on its 941 taxes. On September 2, 2016,
Barringer requested from AXA a final distribution from her 401(k) account, citing the end
Participants are always vested in their own funds, but become vested in their
1
employer’s matching funds after five years of employment.
3
of her employment with J&R on August 31, 2016, as the basis. AXA approved the request.
When Barringer received the distribution, she again deposited the funds, along with some
of her personal savings, into the J&R account in order to fund the company. But this time,
although “there was money in the account that could have been paid to the IRS [for the
delinquent 941 taxes, Barringer] chose to pay herself and other vendors [instead].” J.A.
281. Notwithstanding her representation to AXA, Barringer continued working for J&R
until October 28, 2016, receiving benefits and payments from the company during that
period.
On July 25, 2019, Barringer’s attorneys met with agents of the IRS, Federal Bureau
of Investigation, Virginia State Police, and attorneys from the United States Attorney’s
Office, all of whom were investigating potential financial crimes at J&R. Barringer joined
the interview at the suggestion of one of her attorneys. 2 During the interview, “[i]t was
explained to her she didn’t have to be there, she didn’t have to answer any questions, and
that things she did say could be used against her.” J.A. 208. On this last point, “[i]t was
expressed to her at the beginning of the interview and at the end of the interview that it was
very important that she was truthful to federal law enforcement, that it was a crime to lie
to [the agents].” Id.2
The interview was neither recorded nor contemporaneously transcribed. Instead,
an IRS investigator prepared a memorandum following the interview based on his
recollection and the notes he and the other investigators took during the meeting.
4
During the interview, Barringer stated that her last day of employment at J&R was
October 28, 2016, which was consistent with her claims in two civil cases. 3 However, later
in the interview, Barringer changed her answer and asserted that she left J&R on August
31, 2016. Barringer also explained that she had tried to withdraw funds from her 401(k)
account to pay the 941 taxes, but that AXA denied her request. After receiving this denial,
she confirmed that she nonetheless submitted a withdrawal form to AXA, claiming that she
needed the funds to prevent foreclosure because she feared she would be unable to pay her
mortgage if J&R collapsed.
B.
A federal grand jury subsequently returned a nine-count indictment against
Barringer for willfully failing to collect and truthfully account for and pay taxes, in
violation of 26 U.S.C. § 7202 (Counts One through Four); wire fraud, in violation of 18
U.S.C. § 1343 (Counts Five and Six); and making materially false statements to federal
agents, in violation of 18 U.S.C. § 1001(a)(2) (Counts Seven through Nine).
Barringer moved pretrial to dismiss the indictment. First, she requested dismissal of
the tax charges in Counts One through Four on equal protection grounds, highlighting that
the Government had charged her, but not Roy Riley, the owner of J&R. Next, she claimed
the wire fraud charges in Counts Five and Six were insufficient as a matter of law because
the relevant statute only targets schemes aimed at appropriating funds or property from
3
Barringer sued J&R and Roy Riley, the owner of the company, for repayment of
the funds she deposited into J&R (from both her 401(k) account and personal savings),
failure to pay wages, and recovery of her personal property at J&R’s workplace.
5
others, and the funds at issue were hers alone. Finally, she argued that if the tax and wire
fraud charges were dismissed, then the false statements alleged in Counts Seven through
Nine by definition could not have been material to a matter within the Government’s
jurisdiction, as required by the relevant statute. The court denied the motion as to Counts
One through Four, finding that “the motion d[id] not allege [a] sufficient factual basis” to
support dismissal “on the ground of selective prosecution.” J.A. 76. As for the remaining
counts, it denied the motion without prejudice as premature.
After the Government successfully moved to dismiss Count One, 4 Barringer
proceeded to trial on Counts Two through Nine. During opening statements, the prosecutor
stated that the case was about “[t]axes, fraud, and lies.” J.A. 86. Relevant here, Ron Vincek,
AXA’s senior director of 401(k) operations, testified. He explained that the withdrawal
form requesting distribution due to end of employment (Barringer’s second request in
September 2016) required the employee and the plan sponsor to certify that the information
was correct. The form requesting distribution for a hardship (Barringer’s first request in
November 2014) required a valid hardship, limited the withdrawal amount to the sum
needed, and required approval by the “plan administrator or authorized person to act upon
the administration of the plan.” J.A. 115. On this point, Vincek indicated that reinvestment
into a company was not a valid reason for a hardship withdrawal. He also noted that AXA
would not approve a withdrawal request if the stated reason for the withdrawal did not
4
The Government “decided to dismiss that charge because there actually were [tax]
deposits made.” J.A. 237.
6
satisfy IRS requirements and opined that failure to comply with those requirements could
jeopardize the validity of J&R’s entire 401(k) plan.
IRS Special Agent Trevor McMurray testified that J&R had unpaid taxes in the first
three quarters of 2016, in the amounts of $78,161.09, $64,848.13, and $43,883.20, and that
at Barringer’s direction, J&R paid $96,159.83 in other bills without first paying off those
balances. He did, however, note that the company paid off its outstanding tax balance in
2019, which post-dated Barringer’s employment at J&R. 5
Barringer also testified. She confirmed that she and the other Board members were
responsible for paying the 941 taxes, and that she proposed using the 401(k) funds to pay
the 941 taxes after receiving the IRS letter informing her of her civil liability. Relatedly,
she testified that, in her mind, she did nothing wrong when she withdrew funds from her
401(k) account to pay the 941 taxes because she was using her own funds to save the
company. And she did so because she believed that she would be unable to pay her
mortgage if J&R collapsed. Barringer also testified that she contacted AXA in 2016 to
inquire whether she could close her 401(k) account, but that AXA informed her she could
only do so if she was no longer employed at J&R. She stated that she listed her last day of
employment with J&R as August 31, 2016, in order to access the 401(k) funds, but that she
intended to be rehired the following week. J.A. 363–64. 6
5
At the close of the Government’s case-in-chief, Barringer renewed her pretrial
motion to dismiss and moved for a judgment of acquittal. The district court denied both
motions.
6
At the close of all the evidence, Barringer again renewed her pretrial motion to
dismiss and moved for a judgment of acquittal. The district court denied both motions.
7
During closing arguments, the prosecutor reiterated that the case was “about taxes,
fraud, and lies,” J.A. 540, and emphasized that Barringer’s false statements on the 401(k)
hardship withdrawal forms could have “endanger[ed] the validity of everyone’s 401(k),”
J.A. 541. The jury subsequently convicted Barringer on all counts.
She then moved for a new trial and for a judgment of acquittal, see Fed. R. Crim. P.
29, 33, reiterating the arguments she advanced in her pretrial motion to dismiss and raising
several others. The court granted Barringer’s motion for a judgment of acquittal as to the
wire fraud charges in Counts Five and Six, finding that the Government had failed to prove
that her “deceit deprived another of a property interest.” J.A. 694. However, it denied her
motion for a new trial on the other counts. The court also denied Barringer’s subsequent
motion to reconsider the denial of her posttrial motions.
C.
A Presentence Report (“PSR”) was prepared, setting Barringer’s base offense level
at 16. See U.S.S.G. §§ 2T1.6(a), 2T4.1(F). It also applied a two-level enhancement because
Barringer “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. With a total offense level of 18 and a criminal history category of I, the PSR yielded
an advisory Guidelines range of 27 to 33 months’ imprisonment. Barringer objected to the
abuse-of-trust enhancement, and the Government objected to the absence of an obstruction-
of-justice enhancement, see U.S.S.G. § 3C1.1.
At sentencing, the court concluded that the abuse-of-trust enhancement was proper
because Barringer held a position of trust as to the Government to collect and pay the 941
8
taxes. It also sustained the Government’s objection and imposed a two-level enhancement
for obstruction of justice, raising Barringer’s total offense level to 20 and the advisory
Guidelines range to 33 to 41 months’ imprisonment.
The court sentenced Barringer to 36 months’ imprisonment, and Barringer timely
appealed. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
II.
On appeal, Barringer asserts that the district court erred by denying her motions to
dismiss, for a new trial, and for a judgment of acquittal. She also raises a due process claim
as to Vincek’s testimony. Finding these arguments unpersuasive, we affirm the district
court’s judgment as to her convictions.
A.
Barringer first contests the district court’s denial of her pretrial motion to dismiss
the wire fraud and false statement counts. Specifically, she asserts that the wire fraud
charges were deficient as a matter of law because her actions did not deprive another of a
property interest and relatedly claims that the false statements were not material to a matter
within the Government’s jurisdiction, as required under the relevant statute. We disagree.
1.
“We review the district court’s factual findings on a motion to dismiss an indictment
for clear error, but . . . review its legal conclusions de novo.” United States v. Perry, 757
F.3d 166, 171 (4th Cir. 2014) (citation omitted). “When a criminal defendant challenges
the sufficiency of an indictment prior to the verdict, . . . we apply a heightened scrutiny to
9
ensure that every essential element of an offense has been charged.” Id. (citation omitted).
“[A]n indictment must contain the elements of the offense charged, fairly inform a
defendant of the charge, and enable the defendant to plead double jeopardy as a defense in
a future prosecution for the same offense.” United States v. Kingrea, 573 F.3d 186, 191
(4th Cir. 2009) (citation omitted). “[T]he indictment must also contain a statement of the
essential facts constituting the offense charged[.]” Perry, 757 F.3d at 171 (citation
omitted).
2.
To obtain a conviction for wire fraud, in violation of 18 U.S.C. § 1343, the
Government must show that the defendant “(1) devised or intended to devise a scheme to
defraud and (2) used the . . . wire communications in furtherance of the scheme.” United
States v. Wynn, 684 F.3d 473, 477 (4th Cir. 2012). Here, the preamble to Counts Five and
Six of the indictment charged Barringer as follows:
On, about, and between November 2014 to September 2016, in the Western
District of Virginia, TERESA BLANKENSHIP BARRINGER devised and
intended to devise a scheme to defraud and to obtain money and property by
means of materially false and fraudulent pretenses, representations, and
promises.
It was part of the scheme that BARRINGER submitted forms containing one
or more materially false statements to [AXA] to obtain monetary
disbursements from [AXA].
J.A. 20. It then detailed the specific instances of each alleged wire fraud. 7
7
Count Five cited Barringer’s “[r]eason for request[ing]” $311,859.04 on
November 20, 2014—“to prevent eviction from a principal residence or the foreclosure of
the mortgage on my principal residence”—as a false statement. J.A. 20. Count Six detailed
10
Barringer argues that the Government’s “monetary disbursements” theory
insufficiently charged her with wire fraud. On this point, she contends that “obtain[ing]
monetary disbursements from [AXA]” does not equate to “a scheme to defraud” under
§ 1343 because that element has “the common understanding of wronging one in his
property rights by dishonest methods or schemes, and usually signif[ies] the deprivation of
something of value by trick, deceit, chicane, or overreaching.” Carpenter v. United States,
484 U.S. 19, 27 (1987) (citation and internal quotation marks omitted).
But any error as to the district court’s denial of Barringer’s pretrial motion to dismiss
the wire fraud counts on this basis was harmless because it subsequently granted her motion
for a judgment of acquittal on these charges. J.A. 697 (“[T]he government failed to prove
an essential element of wire fraud—that someone was deprived of a property interest due
to the defendant’s misrepresentations. The wire fraud convictions must be set aside.”).
Barringer responds, however, that such an error was not harmless because she was
prejudiced by impermissible spillover evidence from the wire fraud counts that tainted the
jury’s consideration of the remaining counts. We do not find that argument convincing.
When faced with an evidentiary spillover challenge, we “must determine whether
evidence admitted to support a reversed count prejudiced the remaining counts to warrant
their reversal.” United States v. Hornsby, 666 F.3d 296, 311 (4th Cir. 2012). Barringer must
therefore demonstrate that the challenged evidence would have been inadmissible without
Barringer’s September 2, 2016, request to obtain $50,535.08 based on the following false
statement: “The Election of Benefits is submitted because the participant is [n]o longer
employed by [J&R] and/or past Normal Retirement Age (date no longer employed
8/31/16).” Id. (first alteration in original).
11
the wire fraud counts. Id. She points to two particular kinds of allegedly prejudicial
spillover evidence introduced as a result of the wire fraud charges going to trial: the
withdrawal forms she used to obtain the funds from her 401(k) account, and the “character
attack” that ensued based on the line of questioning and argument that her actions
jeopardized J&R’s entire 401(k) plan.
Even absent the wire fraud counts, we are persuaded that the withdrawal forms
would have been admissible at a trial on the remaining counts. The Government introduced
these forms during Vincek’s testimony, which detailed the procedure to obtain 401(k)
distributions and discussed the fraud warnings included on the forms. At bottom, these
forms would have been admissible in a trial on the remaining counts because “evidence of
the underlying crime [(i.e., alleged wire fraud completed via the withdrawal forms)] and
the defendant’s part in it is admissible to show the motive for [her] efforts to interfere with
the judicial process[] [(i.e., her subsequent false statements to investigators)].” Id. (quoting
United States v. Willoughby, 860 F.2d 15, 24 (2d Cir. 1988)). In other words, “the evidence
with respect to the [withdrawal forms] was necessary to complete the story of [Barringer’s
false statements during] the federal investigation against [her].” Id. Barringer seemingly
recognizes the connection between the withdrawal forms and the remaining counts, as she
explains, “Although only Count 8 explicitly referenced her withdrawal application, all
three [false statement] counts, in fact, related to the withdrawal forms for her 401(k).”
Opening Br. 13 (emphasis added). Accordingly, Barringer fails to demonstrate that this
evidence would have been inadmissible at a trial on the remaining counts, meaning it does
not constitute impermissible spillover.
12
A closer question is whether the Government’s line of questioning and argument on
how Barringer’s actions “could” have “put the entire 401(k) plan in jeopardy” “[f]or the
whole company” would be admissible. J.A. 116. While this contention was arguably
necessary for the wire fraud counts to demonstrate an element of that offense—that
Barringer defrauded another of a property interest 8—it is arguably not relevant to any
element of the tax fraud or false statement counts. Said another way, in a trial on those
remaining counts, the Government’s line of argument could perhaps be excluded under
Federal Rule of Evidence 403 for “confusing the issues[] [and/or] misleading the jury.”
Under those circumstances, it could also possibly be excluded under that Rule for
“unfair prejudice.” At trial, the Government relied on its jeopardizing-the-plan theory on
several occasions, which, Barringer claims, bolstered the view that she was “a serial liar
and cheat.” Opening Br. 24; see J.A. 541 (“Mr. Vincek also told you that lies about a 401(k)
can also endanger the whole plan. That if money is taken out for invalid reasons under a
401(k), that that’s a problem for all the employees in a company and can endanger the
validity of everyone’s 401(k).”); J.A. 545 (“[Barringer’s lie] mattered because it risked the
whole plan.”); J.A. 551 (“[Wire fraud] mattered to AXA and it mattered to the
jeopardization of everyone else’s 401(k) plans.”); see also United States v. Rooney, 37 F.3d
847, 856 (2d Cir. 1994) (“It is only in those cases in which evidence is introduced on the
8
At trial, the Government claimed that the plan had a property interest in Barringer’s
401(k) account. J.A. 555 (“The plan itself controls the assets in the plan until they are
withdrawn. Accordingly, the plan has property rights in the assets of the plan until it
withdraws.”). As the district court’s grant of the posttrial motion for a judgment of acquittal
on the wire fraud counts necessarily reflects, this proposition was not proven.
13
invalidated count that would otherwise be inadmissible on the remaining counts, and this
evidence is presented in such a manner that tends to indicate that the jury probably utilized
this evidence in reaching a verdict on the remaining counts, that spillover prejudice is likely
to occur.”).
Though perhaps close, however, we perceive no prejudice to Barringer when this
challenged evidence is considered in context. Indeed, any potential prejudice was mitigated
by the strength of the Government’s evidence on the remaining counts, the district court’s
jury instruction to consider each count separately, and the overall core similarity of the
facts underlying all counts.
Here, “the Government presented strong evidence to support the [false statement]
convictions.” Hornsby, 666 F.3d at 312. For example, Barringer’s statement during her
interview with investigators that her employment with J&R ended on August 31, 2016,
directly contradicted her claims in two other court cases. Complaint at 3, Barringer v. J &
R Manufacturing, Inc., No. CL15-415 (Tazewell Cty., Va. Cir. Ct. Mar. 22, 2017) (listing
Barringer’s “last day of employment” as “October 28, 2016”); 9 Barringer’s Answer to
Riley’s Complaint & Counterclaims at 13, Riley v. Barringer, No. 1:18-cv-00007-JPJ-PMS
(W.D. Va. filed June 5, 2018), ECF No. 36 (same). Barringer’s statement that she needed
funds from her 401(k) account because she was worried about a possible foreclosure if
J&R collapsed is contradicted by the evidence that her mortgage was up-to-date and had
9
Barringer filed this document as an exhibit to her pretrial motion to dismiss in the
district court below. See Additional Evidence re: Motion to Dismiss, United States v.
Barringer, No. 1:19-cr-00051–JPJ–PMS–1 (W.D. Va. Nov. 12, 2019), ECF No. 23. It is
not included in either the Joint Appendix or the Supplemental Joint Appendix.
14
less than a $200,000 remaining balance, which was substantially less than the $311,859.04
she withdrew for claimed hardship purposes. And Barringer’s claim that she received no
payments from J&R after August 31, 2016, was directly contradicted by payroll records.
As for the tax fraud convictions, which she does not challenge on appeal, the Government
presented strong evidence on these counts as well, eliciting testimony from IRS Special
Agent McMurray, who explained that J&R had unpaid taxes in the first three quarters of
2016. The strength of the Government’s evidence on the remaining counts thus mitigated
any prejudicial spillover. See Hornsby, 666 F.3d at 312 (relying on the Government’s
“strong evidence” in holding “that there was no prejudicial spillover of evidence”); United
States v. Gjurashaj, 706 F.2d 395, 400 (2d Cir. 1983) (rejecting claim of prejudicial
spillover based on the strength of the Government’s evidence on remaining counts).
“[A]ny concerns of prejudicial spillover were also mitigated by the district court’s
explicit instruction that the jury must consider . . . each count separately.” United States v.
Campbell, 963 F.3d 309, 319 (4th Cir.), cert. denied sub nom. Washington v. United States,
141 S. Ct. 927 (2020). Here, the district court instructed the jury that it “should consider
the evidence separately as to each count and only return a verdict of guilty as to each
separate charge if the evidence proves all of the elements of that charge against the
defendant, beyond a reasonable doubt.” J.A. 643. And, except in “extraordinary situations,
we adhere to the crucial assumption that jurors carefully follow instructions.” United States
v. Rafiekian, 991 F.3d 529, 550 (4th Cir. 2021) (alteration, citation, and internal quotation
marks omitted).
15
Finally, all counts shared similar underlying facts. For example, the factual basis
underlying the indictment originated with Barringer failing to pay J&R’s 941 taxes,
knowing that this was wrong, and yet making other payments, including to herself, despite
this knowledge. As IRS Special Agent McMurray explained, “there was money in [J&R’s]
account that could have been paid to the IRS [for the delinquent 941 taxes], but [Barringer]
chose to pay herself and other vendors.” J.A. 281. And Barringer conceded this in her
testimony. She “kn[ew] that that money should [have] be[en] going to [the] IRS first before
the other people,” but she “kept writing the checks to other vendors.” J.A. 386. This factual
connection further supports our conclusion that any spillover was not prejudicial to her.
See United States v. Livingston, 63 F. App’x 106, 107 (4th Cir. 2003) (per curiam) (“Where
the reversed and the remaining counts are ‘premised on essentially the same facts . . .
evidence relevant and admissible as to one set was equally relevant and admissible as to
the other; [a]ny “spillover” which may have occurred therefore was not prejudicial.’”
(alterations in original) (quoting United States v. Odom, 858 F.2d 664, 666–67 (11th Cir.
1988))). For these reasons, we conclude that Barringer fails to demonstrate prejudice as to
any impermissible spillover evidence.
Accordingly, any error as to the district court’s denial of Barringer’s pretrial motion
to dismiss the wire fraud counts was harmless. 10 For the same reasons, we also reject
10
For the reasons already discussed, the district court did not err when denying
Barringer’s renewed motion to dismiss the wire fraud counts at the close of the
Government’s case-in-chief and at the close of the evidence.
16
Barringer’s argument that the district court erred when declining to grant her motion for a
new trial, as it is largely duplicative of her impermissible spillover claim. 11
3.
Barringer also contends that the district court erred when denying her pretrial
motion to dismiss the false statement counts. To sustain a conviction under 18 U.S.C.
§ 1001(a) for a materially false statement, the Government must prove:
(1) that the defendant made a false statement to a governmental agency or
concealed a fact from it or used a false document knowing it to be false; (2)
the defendant acted knowingly or willfully; and (3) the false statement or
concealed fact or false document was material to a matter within the
jurisdiction of the agency.
United States v. Sarihifard, 155 F.3d 301, 306 (4th Cir. 1998). Barringer contends that,
given the invalidity of the wire fraud counts, her statements to investigators were not
“material to a matter within the jurisdiction of the agency.” Id. (emphases added). But her
understanding of both of those terms is too constrained.
“[T]he term jurisdiction should not be given a narrow or technical meaning for
purposes of § 1001. The term refers to the department’s or agency’s power to exercise
authority in a particular situation, and that power need not include the power to make final
or binding determinations.” United States v. Jackson, 608 F.3d 193, 196–97 (4th Cir. 2010)
(citations and internal quotation marks omitted). The Supreme Court has held that “the
investigation of wrongdoing is a proper governmental function; and since it is the very
11
We “review[] ‘the district court’s denial of a motion for a new trial under an abuse
of discretion standard’ of review.” United States v. Wolf, 860 F.3d 175, 189 (4th Cir 2017)
(citation omitted).
17
purpose of an investigation to uncover the truth, any falsehood relating to the subject of the
investigation perverts that function.” Brogan v. United States, 522 U.S. 398, 402 (1998)
(emphasis omitted).
Barringer contends that her false statements did not relate to a matter within the
Government’s jurisdiction because “the statements in her application to withdraw her own
401(k) funds could not implicate a crime against the United States [(i.e., wire fraud)] and,
therefore, the criminal investigation of those statements did not fall within the agency’s
jurisdiction.” Opening Br. 15; see also id. at 19. But the investigation was not only into
whether Barringer committed wire fraud; it also broadly targeted financial crimes at J&R.
J.A. 206 (IRS Special Agent McMurray testifying that “[a]t that time [investigators] were
looking at the employment tax and potential wire fraud”). Accordingly, assuming arguendo
that the investigators knew they could not prosecute Barringer for wire fraud, her
statements during the interview still would have been within their jurisdiction as relevant
to the broader investigation of J&R, particularly the unpaid taxes. See J.A. 206–07 (IRS
Special Agent McMurray’s testifying, “Q. [H]ow would things like employment dates be
relevant to [employment tax and wire fraud crimes]? A. Well, depending on the document,
it would be very relevant as far as [an] employment tax case. . . . Q. What about things like
pay dates or the reasons people are trying to get money? A. Well, those are all important,
yes. Q. Are they the kind of information that would affect how you might run an
investigation, what you might do in an investigation? A. Yes. Because if it’s a financial
transaction, we’re going to look at the date that financial transaction occurred and the
circumstances around it. So dates are very relevant.”); see also United States v. Rodgers,
18
466 U.S. 475, 479 (1984) (“A criminal investigation surely falls within the meaning of ‘any
matter,’ and . . . [a] department or agency has jurisdiction, in this sense, when it has the
power to exercise authority in a particular situation.” (quoting 18 U.S.C. § 1001)); United
States v. Grenier, 513 F.3d 632, 638 (6th Cir. 2008) (finding meritless an argument that
because an agency could not take a particular action, it lacked “jurisdiction,” as that term
is used in § 1001).
As for materiality, for purposes of § 1001, a “materially false” statement is one that
“has a natural tendency to influence, or is capable of influencing, the decision-making body
to which it was addressed.” United States v. Hamilton, 699 F.3d 356, 362 (4th Cir. 2012)
(citation omitted). Whether the false statement actually influenced an agency’s action is
irrelevant. Id.; see also United States v. Raza, 876 F.3d 604, 616–17 (4th Cir. 2017)
(collecting cases and holding that when the Government is the victim of the false statement,
it “must be capable of influencing . . . the particular government agency or public officials
that were targeted”).
Here, Barringer argues that since the 401(k) funds belonged to her, “she could not
commit wire fraud” and, therefore, the “false statements could not influence the decision
to charge her with offenses related to that withdrawal.” Opening Br. 20. This argument is
also inaccurately narrow. Quite simply, her answers during the interview were material
because they “ha[d] a natural tendency to influence, or [were] capable of influencing” the
direction of the investigation. Hamilton, 699 F.3d at 362 (citation omitted); see also
Brogan, 522 U.S. at 402; Raza, 876 F.3d at 616–17. Of course, her statements did not
19
influence the investigation in a direction favorable to her, but that does not undermine their
inherently material nature. See Hamilton, 699 F.3d at 362.
We thus conclude that Barringer’s statements to investigators were “material to a
matter within the jurisdiction of the agency.” 18 U.S.C. § 1001. Accordingly, we perceive
no error in the district court’s denial of Barringer’s pretrial motion to dismiss the false
statement counts. 12
We briefly address Barringer’s related claim that the district court erred when it
declined to grant her motion for a judgment of acquittal, see Fed. R. Crim. P. 29, on the
false statement counts. We “review de novo a district court’s denial of a Rule 29 motion
. . . [and] must affirm a conviction when substantial evidence viewed in the light most
favorable to the prosecution supports the verdict.” United States v. Moody, 2 F.4th 180,
189 (4th Cir. 2021) (citations and internal quotation marks omitted). In determining
whether substantial evidence exists, we “make all reasonable inferences in favor of the
government and do not weigh evidence or credibility.” Id. (citation and internal quotation
marks omitted). Substantial evidence exists “when a reasonable jury could find it adequate
and sufficient to establish guilt beyond a reasonable doubt.” Id. (citation and internal
quotation marks omitted).
For the reasons already discussed, we are persuaded that substantial evidence
supports Barringer’s conviction on the false statement counts. Barringer nonetheless
12
For the reasons already discussed, the district court did not err when denying
Barringer’s renewed motion to dismiss the false statement counts at the close of the
Government’s case-in-chief and at the close of the evidence.
20
responds that her conviction on Count Eight for a “False Statement to Federal Agents
Regarding Reason for Obtaining Money” is invalid because the Government failed to
negate every reasonable, truthful interpretation of her statement that she needed the funds
from her 401(k) account to prevent foreclosure. J.A. 21. However, “[a]s a general
proposition, circumstantial evidence may be sufficient to support a guilty verdict even
though it does not exclude every reasonable hypothesis consistent with innocence.” United
States v. Zayyad, 741 F.3d 452, 464 (4th Cir. 2014) (citation and internal quotation marks
omitted). And “[t]he jury was entitled to reject the theory consistent with innocence and
accept the one consistent with guilt, so long as there was substantial evidence for its
choice.” Id. (citation and internal quotation marks omitted).
Substantial evidence was present as to Count Eight. As discussed above, the
evidence reflected that Barringer’s mortgage was up-to-date and had less than a $200,000
remaining balance, which was substantially less than the $311,859.04 she withdrew for
claimed hardship purposes. This evidence directly contradicted her assertion that she
needed funds from her 401(k) account because she was worried about a possible
foreclosure if J&R collapsed. The jury was entitled to credit this substantial evidence when
considering Count Eight. Accordingly, we find no error in the district court’s denial of
Barringer’s motion for a judgment of acquittal on the false statement counts.
B.
Barringer also raises a due process claim, asserting that the Government knowingly
relied on Vincek’s “patently false” testimony that Barringer’s actions could have put J&R’s
entire 401(k) plan in jeopardy. Opening Br. 38–39; see also United States v. Bush, 944 F.3d
21189, 197 (4th Cir. 2019) (“[A] conviction obtained through use of false evidence, known
to be such by representatives of the State, must fall under the Fourteenth Amendment [as
a due process violation].” (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)), cert.
denied, 140 S. Ct. 2628 (2020)).
Because Barringer did not raise this claim below, it is reviewed for plain error.
United States v. Seignious, 757 F.3d 155, 160 (4th Cir. 2014); see Fed. R. Crim. P. 52(b).
To establish plain error, Barringer must demonstrate that “there has been (1) error; (2) that
is plain . . . ; [and] (3) that [it] affects [her] substantial rights.” United States v. Seigler, 990
F.3d 331, 342 (4th Cir. 2021) (citation and internal quotation marks omitted). Even if these
requirements are met, our “authority to recognize plain error is ‘permissive, not
mandatory,’ and should be employed only to prevent ‘a miscarriage of justice.’” Id.(citation omitted).
We detect no plain error here. At bottom, we are unconvinced that Vincek’s
testimony was patently false. In fact, Vincek’s testimony that Barringer’s improper
distributions “could” “put the entire 401(k) plan in jeopardy” “[f]or the whole company”
was plausibly accurate because her actions could have impacted the plan’s tax-favored
status. J.A. 116. Even if that result may not have been a likely one, it was not an incorrect
statement of the potential legal consequences of Barringer’s actions.
A tax-favored retirement plan such as a 401(k) “may be disqualified for failing to
operate in accordance with the . . . plan’s terms” or with other requirements imposed by
the Tax Code, which could include improper hardship distributions such as the one
Barringer received. Hull v. I.R.S., 656 F.3d 1174, 1184 (10th Cir. 2011); see also Marcia
22
Beth Stairman Wagner et al., U.S. Income: EPCRS––Plan Correction and
Disqualification, 375–3d Tax. Mgmt. Port. (BNA) § I (“When a plan fails to satisfy the
qualification rules — either because the plan’s terms are lacking or because the plan has
not been operated in accordance with its terms or other legal requirements — the plan may
be ‘disqualified.’”). Disqualification can “result in the plan losing its tax-exempt status,”
thereby affecting employees, the employer, and the plan’s trust. Hull, 656 F.3d at 1184.
For instance, “[i]f a plan loses its protected status, employer contributions become
immediately taxable to the participants to whom they are owed, removing incentives for
employer and employee to continue their participation in the Plan.” Carter v. Pension Plan
of A. Finkl & Sons Co. for Eligible Off. Emps., No. 08 C 7169, 2010 WL 1930133, at *11
(N.D. Ill. May 12, 2010) (citing 26 C.F.R. § 1.402(b)–1), aff’d, 654 F.3d 719 (7th Cir.
2011); accord Wagner et al., supra, § I(B)(3)(a)(1), (c). We do not speculate on whether
Barringer’s actions would have led to this consequence, but we note that Vincek’s
testimony that it could have caused the foregoing was not patently false, as Barringer
claims.
Accordingly, Barringer cannot demonstrate that an error occurred, let alone a plain
one. See United States v. Roane, 378 F.3d 382, 401 (4th Cir. 2004) (declining to entertain
a due process claim based upon assertion that a Government witness lied because there was
“no evidence” provided to substantiate the claim and noting that “conclusory accusations
that the Government should have known that a statement was false, without more” are
insufficient). Therefore, her due process claim fails.
23
III.
We now turn to Barringer’s arguments on the abuse-of-trust enhancement under
U.S.S.G. § 3B1.3. Generally, “[w]e review sentences ‘under a deferential abuse-of-
discretion standard.’” United States v. Dennings, 922 F.3d 232, 235 (4th Cir. 2019)
(quoting Gall v. United States, 552 U.S. 38, 41 (2007)). But “[o]n a challenge to a district
court’s application of the Guidelines, we review questions of law de novo and findings of
fact for clear error.” United States v. Hawley, 919 F.3d 252, 255 (4th Cir. 2019) (citation
omitted).
A.
The Guidelines provide for a two-level enhancement “[i]f the defendant 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. The
Sentencing Commission’s Commentary to § 3B1.3 explains its application:
“Public or private 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).
Persons holding such positions ordinarily are subject to significantly less
supervision than employees whose responsibilities are primarily non-
discretionary in nature. For this adjustment to apply, the position of public or
private trust must have contributed in some significant way to facilitating the
commission or concealment of the offense (e.g., by making the detection of
the offense or the defendant’s responsibility for the offense more difficult).
U.S.S.G. § 3B1.3 cmt. n.1. The enhancement is therefore proper “in the case of an
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 physician under the
guise of an examination,” but not “in the case of an embezzlement or theft by an ordinary
24
bank teller or hotel clerk.” Id. Finally, the enhancement is not to be added “if an abuse of
trust or skill is included in the base offense level or specific offense characteristic.”
U.S.S.G. § 3B1.3.
When assessing whether the defendant abused a position of trust, we typically
consider three factors, “including (1) whether the defendant had special duties or special
access to information not available to other employees, (2) the extent of the discretion the
defendant possessed, and (3) whether the defendant’s actions indicate that he is more
culpable than others in similar positions who engage in criminal acts.” United States v.
Abdelshafi, 592 F.3d 602, 611 (4th Cir. 2010) (citing United States v. Akinkoye, 185 F.3d
192, 203 (4th Cir. 1999)). The analysis is assessed from the victim’s point of view, which
is the IRS in this case. Wolf, 860 F.3d at 200; see also United States v. Smith, 353 F. App’x
869, 872 (4th Cir. 2009) (per curiam) (“The question must be examined from the
perspective of the victim. Smith contends that no relationship of trust existed between him
and the IRS, which was identified as the victim of the offense[.]” (citation omitted)); United
States v. May, 568 F.3d 597, 603 (6th Cir. 2009) (“[T]he IRS . . . is the victim of May’s
Section 7202 offense.”).
B.
The district court concluded that the abuse-of-trust enhancement was proper
because Barringer held a position of trust as to the Government to collect and pay the 941
taxes:
[N]ormally if a person is being prosecuted criminally for failing to pay their
taxes . . . they don’t abuse their trust. But in a case such as this . . . , a person
such as Ms. Barringer is placed in a position of trust by the government to
25
collect, hold, and deposit funds; so-called employment taxes, to hold in trust
and deposit for the government. . . . I believe that that position of trust meets
the qualifications of Section 3B1.3.
Supp. J.A. 24.
On appeal, Barringer first contends that the district court erred when finding that
she occupied a position of trust. On a preliminary point, we note the conflicting precedent
on the standard of review for this inquiry. Compare United States v. Ebersole, 411 F.3d
517, 535–36 (4th Cir. 2005) (“We review de novo the district court’s legal interpretation
of what constitutes ‘a position of trust’ under § 3B1.3.”), with Smith, 353 F. App’x at 872
(“The district court’s decision that a defendant had a position of trust is a factual
determination reviewed for clear error.” (citing United States v. Bollin, 264 F.3d 391, 415
(4th Cir. 2001), overruled on other grounds by United States v. Chamberlain, 868 F.3d 290(4th Cir. 2017))). We need not resolve this question here because, even if we conducted a
de novo review, we would reach the same conclusion that Barringer’s role qualified as a
position of trust.
Specifically, our review of the Abdelshafi factors on this record reflects the
comprehensive scope of Barringer’s position at J&R, which was a position of trust. As IRS
Special Agent McMurray testified, “[Barringer] was responsible for the accounting. She
was responsible for the payroll. She did sales. She was responsible for collecting monies
owed to the company by customers. She basically ran the company.” J.A. 209 (emphasis
added). He also explained the significant discretion she retained in that position as to
payments: “As the second in command in that company, she could have chosen whatever
she wanted [as] to who not to pay.” J.A. 283. For instance, he explained that “there was
26
money in the account that could have been paid to the IRS [for the delinquent 941 taxes,]
but she chose to pay herself and other vendors.” J.A. 281.
Barringer’s own testimony confirmed the extensive nature of her position:
My duties were day-to-day operations of the company. And that included . . .
taking sales over the phone, being the liaison between the customers [and]
J&R, making sure that we had inventory to meet the needs, the bookkeeping
as far as accounts payable, receivables, payroll, inventory. Did cost
accounting for 17 product lines. Did some of the advertising and the
advertising brochures, and worked directly with the companies, the
customers.
J.A. 345. In fact, Barringer confirmed that she was “the one signing the checks,” “the one
signing the taxes,” and was “in charge of the 401(k) withholdings.” J.A. 371–72, 383. On
this point, she conceded that she was “putting the [company] money . . . to [her]self and
not the IRS.” J.A. 386. And even though she “kn[ew] that that money should [have] be[en]
going to [the] IRS first,” she instead “kept writing the checks to other vendors.” J.A. 386.
Barringer’s corporate role and the discharge of her duties sufficiently demonstrate
that she conducted J&R’s affairs with significant discretion and occupied a position of
trust, particularly related to the delinquent payroll taxes, because her position was
“characterized by professional or managerial discretion (i.e., substantial discretionary
judgment that is ordinarily given considerable deference).” U.S.S.G. § 3B1.3 cmt. n.1. Our
decision in Smith is instructive on this point. There, we affirmed the district court’s
application of the abuse-of-trust enhancement on clear-error review under similar
circumstances. As president of the corporation in question, Smith “defrauded the IRS by
using corporate funds extensively for personal vehicles and other personal purchases
without reporting the assets acquired as personal income” and by “us[ing] color-coded
27
checks to avoid payroll reporting requirements.” Smith, 353 F. App’x at 870. Smith
subsequently pleaded guilty to conspiracy to defraud the United States, in violation of 18
U.S.C. § 371, and fraudulent receipt of bankruptcy property, in violation of 18 U.S.C. §§
152(2), 2. Id. At sentencing, over Smith’s objections, the district court applied the abuse-
of-trust enhancement, finding that Smith “had the primary responsibility for manipulation
of the payroll and expense checks to carry out the fraud involving trust fund taxes and that
his position as president afforded him discretion that facilitated the offense.” Id. at 871.
On appeal, Smith asserted that the district court erred when applying this
enhancement because “no relationship of trust existed between him and the IRS.” Id. at
872. We disagreed, explaining that “as an employer, Smith was placed in a position of trust
by the government. He was entrusted with collecting, holding, and depositing funds
designated in part for Social Security and Medicare and his failure to carry out this
responsibility victimized taxpayers.” Id. Indeed, we noted that Smith “had both a fiduciary
obligation to the IRS to carry out this responsibility, and a fiduciary relationship with the
employees of [the company] which carried the same obligation.” Id. at 873. At bottom, we
explained that “it is essential that the government be able to trust employers to collect, hold
in trust, and deposit the ‘employment taxes’ owed by the employees and the company.” Id.at 872–73. Therefore, we affirmed the district court’s application of the abuse-of-trust
enhancement.
Considering the wide discretion accorded Barringer in her position at J&R, Smith’s
reasoning applies with equal force here. As Barringer “basically ran the company,” J.A.
209, she had a “fiduciary obligation to the IRS to carry out” her legal duty to collect and
28
pay over the 941 taxes, Smith, 353 F. App’x at 873. Moreover, a portion of the 941 taxes
were withheld from employees’ income to pay their share of their income taxes, and she
held them solely for transmission to the IRS. Therefore, we cannot say that the district court
erred when determining that Barringer’s discretionary role at J&R constituted a position of
trust.
Barringer nonetheless directs us to the Sixth Circuit’s decision in May to contend
that her responsibilities do not support an abuse-of-trust enhancement. In that case, the
Sixth Circuit reversed the district court’s application of the abuse-of-trust enhancement on
de novo review. May was the “registered agent, majority shareholder, sole director, and
president” of the corporation in question and, in this role, possessed sole authority to sign
checks for the company and otherwise maintained “strict control over company
correspondence.” 568 F.3d at 600. Upon investigation into the corporation, the IRS
“discovered that [it] had never filed either an income tax return or an employment tax
return.” Id. The investigation culminated in an indictment against May, and he was
subsequently convicted of willfully evading his personal income tax liability, in violation
of 26 U.S.C. § 7201, and failing to account for and pay over payroll taxes, in violation of
26 U.S.C. § 7202. Id. at 600–01. At sentencing, the PSR recommended a two-level
enhancement for abuse-of-trust based on his role as the sole director of the company in
question. Id. at 601. Over May’s objections, the district court adopted the PSR and applied
the enhancement. Id.On appeal, the Sixth Circuit explained that “[t]he level of discretion accorded an
employee is to be the decisive factor in determining whether his position was one that can
29
be characterized as a trust position.” Id. at 603 (citation omitted). However, it then held
that the district court erred when applying the abuse-of-trust enhancement because May
had not been in a position of trust given his lack of decision-making discretion to collect
and transfer payroll taxes to the IRS. Id. Specifically, the court reasoned,
May’s role would appear to be more like that of a bank teller—May’s only
duty was to collect the money and pass it along to the government, as a
teller’s only job is to collect depositors’ money and pass it along to the
bank—rather than that of a bank executive. May had no discretion. The law
simply required May to collect the payroll taxes from his employees and
transfer the funds to the IRS.
Id. (internal citations omitted).
Although this case is analogous to Barringer’s, we do not find its reasoning
persuasive and decline to follow it. Critically, the Sixth Circuit’s conclusion is a non
sequitur given the facts of the case. As the majority shareholder, sole director, and president
of the corporation in question, May possessed significant discretionary authority, including
the sole right to sign checks for the company. May, 568 F.3d at 600. This role ought to
have qualified as a position of trust considering the Sixth Circuit’s emphasis on discretion
as the “decisive factor in determining whether his position was one that can be
characterized as a trust position,” id. at 603 (citation omitted), which is an accurate
characterization of the Guidelines, U.S.S.G. § 3B1.3 cmt. n.1 (“‘Public or private 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).”). Accordingly, we cannot subscribe to the Sixth Circuit’s conclusion in May.
30
However, May’s underlying principles on discretion actually support our conclusion
here. If we were to consider Barringer’s discretion as the dispositive factor in our analysis,
as the Sixth Circuit contemplated, we would readily conclude that she occupied a position
of trust. As discussed above, Barringer effectively ran J&R’s affairs, determining in that
position whom to pay and when, as well as signing the company’s checks to that effect.
Under May’s principles, we would therefore reach the same conclusion that the district
court did not err when finding that Barringer occupied a position of trust.
Next, Barringer claims that the district court erroneously applied this enhancement
because it results in double-counting. That is to say, she posits that an element of her tax-
fraud conviction under 26 U.S.C. § 7202 (being a “responsible person”) includes the same
conduct as that penalized by the enhancement (occupying a position of trust), meaning she
is ineligible for the enhancement. We disagree.
Section 7202 provides,
Any person required under this title to collect, account for, and pay over any
tax imposed by this title who willfully fails to collect or truthfully account
for and pay over such tax shall, in addition to other penalties provided by
law, be guilty of a felony and, upon conviction thereof, shall be fined not
more than $10,000, or imprisoned not more than 5 years, or both, together
with the costs of prosecution.
26 U.S.C. § 7202. To obtain a conviction under this section, the Government was first
required to prove that Barringer was a “responsible person”––that is, the “person required
. . . to collect, account for, and pay over” the relevant 941 taxes. See Turpin v. United States,
970 F.2d 1344, 1347 (4th Cir. 1992). As the jury instructions accurately reflected, a
“responsible person” is one “who has significant, although not necessarily exclusive or
31
final, control or authority over the employer’s finances or disbursement of the employer’s
funds.” J.A. 648; see Erwin v. United States, 591 F.3d 313, 321 (4th Cir. 2010) (“[T]he
essential inquiry is whether a person has significant, but not necessarily exclusive,
authority over corporate finances or management decisions.”).
Critically then, while the Government was required to make this showing to obtain
a conviction for tax fraud under § 7202, it was not obligated to prove that Barringer also
occupied a position of trust as contemplated by § 3B1.3. United States v. Taylor, 323 F.
App’x 806, 807 (11th Cir. 2009) (per curiam) (explaining that the defendant’s “base
offense level was based on his tax evasion and did not account for his abuse of trust” (citing
26 U.S.C. § 7202; U.S.S.G. § 2T1.6)); United States v. Lombardo, 281 F. App’x 78, 82 (3d
Cir. 2008) (“Application of 26 U.S.C. § 7202 is proper where the defendant failed to
truthfully account for and pay over withholding tax. Application of U.S.S.G. § 3B1.3
applies where the defendant abused of [sic] a position of trust that significantly facilitated
the commission or concealment of the offense. . . . It was not necessary for the Government
to prove an abuse of trust as defined by the Guidelines in order to convict under 26 U.S.C.
§ 7202. The District Court did not count the same underlying conduct twice.”).
While it is true that many responsible persons under § 7202 will also occupy
positions of trust, being a responsible person does not ipso facto equate to holding a
position of trust for U.S.S.G. § 3B1.3 purposes. Indeed, it is possible to be a responsible
person under § 7202 and yet be ineligible for the abuse-of-trust enhancement. Consider,
for instance, a hypothetical defendant who is the responsible person for purposes of
collecting and paying over the 941 taxes and nonetheless has minimal or limited discretion
32
in that role. See Johnson v. United States, 734 F.3d 352, 361–62 (4th Cir. 2013) (holding
that a corporation’s sole shareholder was a “responsible person” under 26 U.S.C. § 6672,13
despite her delegation of the company’s “daily affairs and [authority] to execute checks
and other legal documents” to another employee). Such a defendant would not qualify for
the abuse-of-trust enhancement as her circumstances would be more akin to “an ordinary
bank teller or hotel clerk” than “an attorney serving as a guardian, a bank executive’s
fraudulent loan scheme, or the criminal sexual abuse of a patient by a physician under the
guise of an examination.” U.S.S.G. § 3B1.3 cmt. n.1. Accordingly, Barringer was not
fundamentally exempt from application of this enhancement based simply on the elements
of her § 7202 conviction, meaning the district court did not engage in impermissible
double-counting.
We therefore conclude that the district court did not err when applying the abuse-
of-trust enhancement.
IV.
For the reasons discussed above, the judgment of the district court is
AFFIRMED.
13
Sections 6672 and 7202 effectively operate in tandem. While § 6672 provides for
civil liability and penalties for failure to pay taxes, § 7202 subjects the perpetrator to a
felony conviction. See Slodov v. United States, 436 U.S. 238, 245 (1978) (“Thus, an
employer-official or other employee responsible for collecting and paying taxes who
willfully fails to do so is subject to both a civil penalty equivalent to 100% of the taxes not
collected or paid [under § 6672], and to a felony conviction [under § 7202].”); see also
United States v. Lord, 404 F. App’x 773, 775 (4th Cir. 2010) (relying on cases interpreting
the “responsible person” requirement under § 6672 to interpret that same requirement
under § 7202).
33