United States v. Caplinger

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4878
GREGORY E. CAPLINGER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Thomas A. Wiseman, Jr., Senior District Judge,
sitting by designation.
(CR-99-39-W)
Argued: May 9, 2003
Decided: August 11, 2003
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion.
Judge Michael wrote the opinion, in which Judge Williams and Judge
Shedd joined.
COUNSEL
ARGUED: Thomas Kieran Maher, RUDOLF, MAHER, WIDEN-
HOUSE & FIALKO, Chapel Hill, North Carolina, for Appellant. B.
Frederic Williams, Jr., Assistant United States Attorney, Charlotte,
North Carolina, for Appellee. ON BRIEF: Robert J. Conrad, Jr.,
United States Attorney, Holly A. Pierson, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
2 UNITED STATES v. CAPLINGER
OPINION
MICHAEL, Circuit Judge:
Gregory E. Caplinger was tried and convicted in the Western Dis-
trict of North Carolina on six counts of wire fraud and two counts of
international money laundering. Caplinger’s convictions and sentence
arise out of his successful efforts to attract investment in a bogus
scheme to market worldwide a drug that was supposed to be effective
in treating HIV/AIDS and cancer. Caplinger appeals his convictions
for money laundering and his 168-month sentence. We affirm the
convictions for money laundering. With respect to Caplinger’s sen-
tence, we affirm the district court’s use of the money laundering
guidelines, its grouping of the wire fraud and money laundering
counts, and its determination of the amount of loss. The district court
erred, however, in assessing Caplinger with a two-level enhancement
under U.S.S.G. § 3B1.3 on the ground that he abused a position of
trust when he misrepresented himself as a prominent physician in his
efforts to attract investors. We therefore vacate Caplinger’s sentence
and remand for resentencing without this enhancement.
I.
Caplinger was indicted and tried on six counts of wire fraud, see
18 U.S.C. § 1343, and two counts of international money laundering,
see 18 U.S.C. § 1956(a)(2)(A). The essence of the government’s case
was that Caplinger engaged in a scheme to defraud investors who put
money into Caplinger’s purported effort to market ImmuStim, a medi-
cine he represented to be effective in treating HIV/AIDS and cancer.
At a seven-day trial held in July 2000, the government relied heavily
on the testimony of David Weekly and Harry Kampetis, both of
whom had pled guilty to fraud charges stemming from the same
scheme.
In 1993 before Caplinger came onto the scene, Weekly, a stock
broker, and Kampetis, a retired banker, formed the Diamond Group,
an investment partnership based in North Carolina. The partnership
promised investors that it would invest in prime bank notes and pro-
vide a guaranteed return of 20 percent. The scheme was crooked, and
the Diamond Group (Weekly and Kampetis) soon experienced diffi-
UNITED STATES v. CAPLINGER 3
culty in paying the returns promised to investors. In 1994, at a time
when the Diamond Group partnership was desperate to find ways to
avoid a collapse, Kampetis was introduced to Caplinger, who Kampe-
tis believed was a physician operating a clinic in Santo Domingo,
Dominican Republic. Caplinger claimed that he had access to Immu-
Stim, a high-powered drug produced by C-Systems in Havana, and
that he had successfully tested the drug on patients with HIV/AIDS
and cancer. Caplinger said he had plans to license and market Immu-
Stim worldwide, and he invited Kampetis to join in the venture.
Caplinger told Kampetis that worldwide sales of ImmuStim "would
generate a significant amount of revenue because of how effective
[the drug] was." Caplinger represented that work was under way to
obtain a U.S. patent on ImmuStim, which would be worth about $5
million. Kampetis suggested to Weekly that their Diamond Group
invest in a Caplinger-led effort to market ImmuStim.
Caplinger held himself out to Weekly and Kampetis as a physician
who had received medical degrees from schools in Great Britain and
the Dominican Republic. In addition, Caplinger claimed to have
received a number of academic and professional honors, including a
nomination for the Nobel Prize in Medicine. (At trial the government
offered evidence that Caplinger had presented false credentials to
Weekly and Kampetis. Almost all of Caplinger’s medical "degrees"
were "mail order" ones bought with no study required. For instance,
Caplinger claimed to have received a medical degree from the Metro-
politan Collegiate Institute (MCI) in Great Britain and a Doctor of
Science degree from Sussex College of Technology, also in Great
Britain. An expert witness for the government testified that a medical
degree from MCI could be bought for $100 with no study required.
Sussex College of Technology was a one-man operation run out of a
private home where mail order degrees could be obtained at all levels
in all fields, with no study required. The "nomination" for the Nobel
Prize came from Sussex General Hospital, whose address was a mail-
drop; there was no hospital facility. Caplinger presented evidence that
he held a valid medical degree from Autonomous University of Santo
Domingo. His witnesses testified that a medical degree could be
obtained from this institution by presenting medical degrees earned
outside the Dominican Republic, completing several medical courses,
and passing a competency exam. The registrar of Autonomous Uni-
versity testified that Caplinger had met these requirements.)
4 UNITED STATES v. CAPLINGER
As part of his effort to persuade Weekly and Kampetis to invest
with him, Caplinger presented them with what were purportedly accu-
rate financial statements and records for his corporation, World Medi-
cal Services. The documents showed that the corporation had a net
worth of $8,799,500. According to the records, World Medical Ser-
vices had purchased a large supply of ImmuStim, and Caplinger had
already solicited and received orders for its resale. The corporate
records did reflect, however, that Caplinger’s operations had earned
profits of only $132,000 in ten years. (According to the government’s
evidence at trial, Caplinger had provided Weekly and Kampetis with
statements about the value of his corporation that were materially
false.)
After reviewing Caplinger’s credentials, assessing the financial
data that Caplinger provided about World Medical Services, and con-
sidering Caplinger’s plan to market ImmuStim, Weekly and Kampetis
decided that "the investors [they] represented and their funds would
have a chance to really profit substantially" by putting money into
Caplinger’s venture. Weekly and Kampetis began sending money to
Caplinger in the spring of 1995 and continued to do so for the next
two years. Weekly and Caplinger did not inform investors in their
Diamond Group partnership that substantial sums of partnership
money (about $1.6 million in all) were being invested in Caplinger’s
venture. As Weekly and Kampetis continued to send more and more
money to Caplinger, they decided that they needed "to protect the
position of the investors in the United States." In the fall of 1995
Weekly and Kampetis incorporated Immuno Pharmaceuticals, Inc.
(IPI) in the United States and persuaded Caplinger to transfer all
assets of World Medical Services to IPI. Weekly, Kampetis, and
Caplinger were the primary shareholders in IPI, but they sought addi-
tional investors. Weekly and Kampetis attempted to sell shares of IPI
to large institutional investors, such as Shearson Lehman, but none
were interested. They were, however, able to sell shares to individual
investors. Weekly and Kampetis provided potential investors with
solicitation materials, including brochures and a video, describing
Caplinger’s clinic, the ImmuStim marketing project, and ImmuStim’s
success rates on patients at Caplinger’s clinic. (The government did
not attempt to prove at trial that ImmuStim is ineffective.) Weekly
told potential investors that investment in Caplinger’s ImmuStim mar-
keting venture would produce lucrative returns. Approximately fifteen
UNITED STATES v. CAPLINGER 5
investors paid a total of $230,000 to buy shares of IPI stock. These
monies were wired to Caplinger.
Several IPI investors and potential investors, including the follow-
ing four, testified for the government at trial. Jane Henderson testified
that Weekly contacted her about investing in IPI. Weekly sent her and
her husband a brochure about IPI and an article written by Caplinger
in Spanish. The Hendersons were told that "with a little more invest-
ment . . . ImmuStim could be marketed worldwide." They invested
$30,000 in IPI. Mrs. Henderson testified that she spoke with
Caplinger on one occasion to seek advice about potential cancer treat-
ment for her grandmother. LaGena Green, a North Carolina actress
who is HIV positive, testified that she was approached by Weekly and
asked whether she would be willing to be a spokesperson for Immu-
Stim in exchange for free treatment. Green was flown on two occa-
sions to the Dominican Republic where she was treated at Caplinger’s
clinic. Despite intense pressure from Weekly and Kampetis to serve
as ImmuStim’s spokesperson, Green declined. She did not invest in
ImmuStim and did not pay for the treatment she received at
Caplinger’s clinic. Barry Burke, a childhood friend of Weekly,
invested in IPI after Weekly talked up Caplinger’s project and gave
Burke brochures about IPI that touted the successes of ImmuStim.
Vincent Khau, a potential investor, testified that Weekly and Kampe-
tis flew him to the Dominican Republic to meet with Caplinger.
While there, Khau was taken to Caplinger’s resort condominium and
shown around Caplinger’s offices. He was given a sample vial of
ImmuStim to take home and show to his investment partner. Khau
backed out of investing over $1 million in IPI after discovering that
Caplinger had been convicted several years earlier for practicing med-
icine without a license in North Carolina.
Weekly and Kampetis sent $1,800,000 to Caplinger, either from
Diamond Group funds or the sale of IPI shares. All of the funds were
wired from the United States to the Dominican Republic. Six specific
transfers to Caplinger were the basis for the wire fraud counts against
him: $49,000 on May 4, 1995; $25,000 on October 3, 1995; $50,000
on November 29, 1995; $825,000 on December 15, 1995; $70,000 on
April 9, 1996; and $40,000 on September 20, 1996. The November
1995 transfer of $50,000 and the December 1995 transfer of $825,000
also formed the basis for the two money laundering counts. Caplinger
6 UNITED STATES v. CAPLINGER
told Weekly and Kampetis that the $50,000 was required to keep
Caplinger’s clinic operation going. Caplinger said that the $825,000
was needed to pay for a substantial order of ImmuStim. He made
constant requests to Weekly and Kampetis for money during the two
years they were involved with him. Caplinger represented that funds
were needed to pay staff, to pay expenses for the clinic, to buy medi-
cal supplies, and to maintain a corporate airplane. Caplinger told FBI
Agent Julia Mueller that he received almost $2 million from Weekly
and Kampetis, which he used to make payments for ImmuStim sup-
plies, to pay legal bills, to maintain the airplane, and to keep the clinic
running. According to Caplinger, he did not know the individual
sources of the money sent by Weekly and Kampetis, but he knew that
it came from investors solicited by them.
Weekly and Kampetis learned about Caplinger’s conviction for the
illegal practice of medicine in the fall of 1996. The two men neverthe-
less continued their relationship with Caplinger. By January 1997,
however, Weekly and Kampetis could no longer raise funds for
Caplinger’s speculative venture. By the spring of that year they were
fending off calls from concerned investors demanding interest pay-
ments and information about their investments. Weekly and Kampetis
became skeptical about Caplinger and his ImmuStim project because
the clinic was not generating revenues, and they appeared to be fund-
ing the entire operation. By the spring of 1997 two years had passed,
and Weekly and Kampetis had not received any return on their invest-
ment with Caplinger. At that point, they ended their relationship with
Caplinger and sought legal counsel. In May 1997 Weekly began
cooperating with the FBI. Both Weekly and Kampetis were charged
with fraud and entered plea agreements. The government promised to
recommend reduced sentences in exchange for their cooperation and
testimony against Caplinger.
At trial, following the denial of his motion for acquittal, Caplinger
was convicted by the jury on all eight counts. The Presentence Report
(PSR), adopted by the district court, used the money laundering
guidelines, and not the ones on fraud, to calculate Caplinger’s offense
level. The entire $1,800,000 received by Caplinger by wire was
treated as a loss under the money laundering guidelines in calculating
the offense level. Caplinger objected both to the use of the money
laundering guidelines and the treatment of the entire $1,800,000 as
UNITED STATES v. CAPLINGER 7
the loss under those guidelines. FBI Agent Mueller testified at sen-
tencing that all of the funds wired to Caplinger were used to promote
his fraudulent scheme. The district court concluded that Caplinger’s
"continuing enterprise" was supported by all of the funds sent to him
by Weekly and Kampetis and that $1,800,000 thus represented the
appropriate loss under the money laundering guidelines. The district
court also adopted, over Caplinger’s objection, the PSR’s recommen-
dation for a two-point enhancement for abuse of trust under U.S.S.G.
§ 3B1.3. The enhancement was based on Caplinger’s representation,
which was passed on to potential investors, that he was a physician.
On October 30, 2001, the district court sentenced Caplinger to 168
months imprisonment and three years supervised release; Caplinger
was also ordered to pay monetary penalties of $1,059,000 in restitu-
tion and $450 in special assessments. Caplinger appeals his interna-
tional money laundering convictions and his sentence. He does not
appeal his wire fraud convictions.
II.
Caplinger first argues that the evidence was insufficient to prove
the intent element of the two international money laundering charges.
In reviewing a sufficiency of the evidence challenge to a jury verdict,
we decide whether there is "substantial evidence, taking the view
most favorable to the Government, to support [the verdict]." Glasser
v. United States, 315 U.S. 60, 80 (1942). The international money
laundering counts were based on two wire transfers from Weekly and
Kampetis to Caplinger, the first in November 1995 for $50,000 and
the second in December 1995 for $825,000. To prove that Caplinger
engaged in international money laundering, the government had to
show that he caused funds to be transferred "from a place in the
United States to or through a place outside . . . with the intent to pro-
mote the carrying on of specified unlawful activity." 18 U.S.C.
§ 1956(a)(2)(A). See also id. § 1956(c)(7)(A) (defining "specified
unlawful activity" to include wire fraud). Caplinger contends that the
government failed to prove that he arranged to have the funds trans-
ferred "with the intent to promote" his unlawful activity, namely, his
bogus ImmuStim marketing scheme that was funded by wire fraud.
As Caplinger recognizes in his brief, we have held under the domestic
money laundering statute, 18 U.S.C. § 1956(a)(1)(A)(i) — a statute
containing the same "intent to promote" language — that intent to
8 UNITED STATES v. CAPLINGER
promote is proven with evidence that the defendant used proceeds
from an unlawful scheme to keep the scheme going. See United States
v. Stewart, 256 F.3d 231, 249-50 (4th Cir. 2001); United States v. Wil-
kinson, 137 F.3d 214, 221 (4th Cir. 1998). Caplinger’s specific argu-
ment is that the government failed to prove use because it did not
introduce any bank records or other documents "to show what was
actually done with the money once it [was] transferred." Appellant’s
Br. at 23. In construing the companion domestic money laundering
statute, however, we have held that the use of unlawful proceeds to
further an unlawful scheme can be proved without records document-
ing specific expenditures. Stewart, 256 F.3d at 249. Rather, use can
be proved by other competent evidence, including circumstantial evi-
dence, that the defendant applied unlawful proceeds to promote and
perpetuate his scheme. Id.The government contends there was sufficient evidence to allow
the jury to find that Caplinger used the $50,000 and the $825,000
transfers to keep his illegal scheme going. We agree. The govern-
ment’s evidence established that Caplinger told Weekly and Kampetis
that he needed the $50,000 to keep the clinic in operation. Caplinger
told Weekly that he needed the $825,000 to purchase "a large quantity
of ImmuStim." Caplinger made constant pleas to Weekly and Kampe-
tis for money to cover clinic expenses, including rent and salaries,
medical supplies, and the maintenance of a corporate plane. Caplinger
was in obvious need of funds: in the ten years before Weekly and
Kampetis arrived on the scene, Caplinger’s operation produced total
profits of only $132,000; and Caplinger needed the clinic and all of
its trappings to attract investors and to assure them that the ImmuStim
marketing project was a sound investment. Following the transfers
from Weekly and Kampetis, Caplinger was able to keep the clinic in
operation and maintain the corporate airplane, two indications that the
money went exactly where Caplinger said it would go. Moreover,
Caplinger himself told the FBI that he used the wired funds to buy
ImmuStim, to make repairs on the airplane, and to "keep the clinic
going." In sum, there was substantial evidence to support the jury’s
finding that Caplinger intended to promote his fraudulent ImmuStim
marketing scheme through use of the transferred funds. See Stewart,
256 F.3d at 250. Caplinger’s convictions on the two counts of interna-
tional money laundering are therefore affirmed.
UNITED STATES v. CAPLINGER 9
III.
We turn next to Caplinger’s challenges to his sentence. We review
the district court’s factual findings at sentencing for clear error, and
we review its legal interpretation of the Sentencing Guidelines de
novo. United States v. Dawkins, 202 F.3d 711, 714 (4th Cir. 2000).
A.
We start with Caplinger’s argument that because this is essentially
a fraud case, the district court erred in referring to the money launder-
ing guidelines instead of just the fraud guidelines. Guidelines
§ 1B1.2(a), however, instructed the district court to refer to the Statu-
tory Index (Appendix A) to identify the guidelines for the statutes of
conviction. U.S.S.G. § 1B1.2(a) (2000). The index, in turn, directed
the court to the money laundering guidelines, U.S.S.G. § 2S1.1
(2000), for Caplinger’s convictions for money laundering under 18
U.S.C. § 1956, and to the fraud guidelines, U.S.S.G. § 2F1.1 (2000),
for his convictions for wire fraud under 18 U.S.C. § 1343. The district
court therefore did not err in referring to the money laundering guide-
lines. We will consider next in part III.B whether the court properly
applied those guidelines.
B.
Caplinger argues that the district court erred by grouping the wire
fraud and money laundering counts under U.S.S.G. § 3D1.2(d) and
applying the higher offense level for money laundering pursuant to
U.S.S.G. § 3D1.3(b). Section 3D1.2(d) provides for grouping of all
"counts involving substantially the same harm . . . [w]hen the offense
level is determined largely on the total amount of the harm or loss."
Grouping under § 3D1.2(d) results in the calculation of an offense
level that is based on the aggregated loss. See U.S.S.G. § 3D.1.3(b)
(offense level for counts grouped under § 3D1.2(d) corresponds to the
aggregated quantity). At the time of Caplinger’s sentencing, the law
in this circuit was that offenses for fraud and money laundering could
be grouped together under § 3D1.2(d) when they are "‘closely
related.’" United States v. Bolden, 325 F.3d 471, 496 (4th Cir. 2003)
(quoting United States v. Walker, 112 F.3d 163, 167 (4th Cir. 1997)).
See also United States v. Porter, 909 F.2d 789, 792-93 (4th Cir.
10 UNITED STATES v. CAPLINGER
1990); cf. United States v. Mullens, 65 F.3d 1560, 1564-65 (11th Cir.
1995) (grouping mail fraud and laundering offenses under
§ 3D1.2(d)). In Walker, for example, the amounts specified in the
money laundering counts amounted only to $5051.01, but the district
court nevertheless looked to the amount of money involved in the
mail fraud counts ($850,913.59) and used that amount to determine
the offense level. Walker, 112 F.3d at 166-67. We held that this
aggregation was permissible because "the facts of the case establish
that the mail fraud and money laundering crimes were interrelated,"
specifically, the "money laundering was part of [the] fraudulent
scheme." Id., 112 F.2d at 167. See also Bolden, 325 F.3d at 496 (hold-
ing that grouping was appropriate when the "money laundering and
fraud activities were part of a continuous, common scheme to
defraud"); Mullens, 65 F.3d at 1565 ("[T]he amount of money col-
lected through fraud was co-extensive with the sums involved in the
charged and uncharged money laundering counts and was, therefore,
the total amount of funds involved in the ponzi."). On the facts of
Caplinger’s case, the district court did not err in determining that the
money laundering and wire fraud activities were part of a continuous,
common scheme to defraud. The court was therefore correct in group-
ing the wire fraud and money laundering counts and in using the
money laundering guidelines to set Caplinger’s offense level.
We note that Amendment 634 to the Guidelines, which went into
effect just two days after Caplinger’s sentencing, explicitly provides
for grouping of money laundering counts and counts for the underly-
ing offense under § 3D1.2(c), rather than § 3D1.2(d) as our court had
previously allowed. U.S.S.G. Supp. to App. C, Amend. 634 (effective
Nov. 1, 2001). (The Amendment completely changes the way in
which the offense level for money laundering is calculated. See
U.S.S.G. § 2S1.1(a) (2001). Rather than setting base offense levels of
23 or 20 for money laundering like the earlier guideline, the amended
guideline sets the base offense level at either the offense level for the
underlying offense from which the laundered funds were derived or
eight plus the number of offense levels from the table in § 2B1.1
(Theft, Property Destruction, and Fraud) corresponding to the value
of the laundered funds. See id.) Amendment 634 does not apply retro-
actively, however, and thus Caplinger does not benefit from it. See
United States v. King, 280 F.3d 886, 891 (8th Cir. 2002); United
UNITED STATES v. CAPLINGER 11
States v. McIntosh, 280 F.3d 479, 485 (5th Cir. 2002); United States
v. Sabbeth, 277 F.3d 94, 99 (2d Cir. 2002).
Caplinger further argues that the district court erred in setting the
loss under the money laundering guidelines at $1,800,000, the total
of the funds wired to Caplinger by Weekly and Kampetis. Caplinger
says that the money laundering loss should have been limited to
$875,000, the loss stemming from the two money laundering counts.
At the time of Caplinger’s sentencing, the money laundering guide-
lines for a conviction under 18 U.S.C. § 1956 established a base
offense level of 23. U.S.S.G. § 2S1.1 (2000). If the money laundered
was between $600,000 and $1,000,000, an additional four points were
added, bringing the offense level to 27. If the money laundered was
in excess of $1,000,000, five points were added, bringing the offense
level to 28. Id. Thus, if the loss amount had been limited to the funds
specified in the money laundering counts under 18 U.S.C. § 1956,
Caplinger would have faced an offense level of 27. On the other hand,
if (as the district court determined) the loss amount was all of the
money ($1,800,000) wired to Caplinger, he faced an offense level of
28. According to Caplinger, the district court erred in setting the loss
figure at $1,800,000 (yielding level 28) because the government
failed to prove that he used all of the wired funds to promote his fraud
scheme. At trial the government presented evidence that Caplinger
constantly requested money from Weekly and Kampetis — requests
that far exceeded the $875,000 specified in the money laundering
counts — to pay for clinic expenses, including rent, staff salaries, and
medical supplies, and for other expenses such as maintenance of a
corporate airplane. At sentencing FBI Agent Mueller testified that
Caplinger told her that the wired money went to pay expenses, includ-
ing salaries, research, rent, and marketing, and to buy large quantities
of ImmuStim. In light of this evidence, the district court did not
clearly err in finding that "[t]he continuing enterprise was supported
by the money when Mr. Caplinger got the money" and that all of the
funds ($1,800,000) Caplinger got from Weekly and Kampetis were
used to promote Caplinger’s ongoing fraudulent activities. The loss
figure under the money laundering guidelines was therefore properly
fixed at $1,800,000.
C.
Finally, Caplinger argues that the district court erred in assessing
a two-level enhancement under U.S.S.G. § 3B1.3 for abuse of a posi-
12 UNITED STATES v. CAPLINGER
tion of trust. A defendant gets the two-level increase under § 3B1.3
if the district court "determines that [he] abused a position of trust and
that abuse significantly contributed to the commission or concealment
of the crime." United States v. Akinkoye, 185 F.3d 192, 203 (4th Cir.
1999). See also U.S.S.G. § 3B1.3 (2000). We review for clear error
the district court’s factual findings that support the enhancement for
abuse of a position of trust. Dawkins, 202 F.3d at 714; United States
v. Helton, 953 F.2d 867, 869 (4th Cir. 1992) (concluding that determi-
nations under both parts of § 3B1.3, abuse of position of trust and use
of a special skill, should be reviewed under the same standard). Of
course, to the extent the district court undertakes a legal interpretation
of any guideline, including § 3B1.3, our review is de novo. United
States v. Gormley, 201 F.3d 290, 296 (4th Cir. 2000) (concluding that
the district court "erred in its interpretation of the guidelines by con-
cluding that tax preparation as practiced by [the defendant] is a spe-
cial skill" under U.S.S.G. § 3B1.3).
The basic question is whether Caplinger, by posing as an accom-
plished physician in order to influence potential investors, abused a
position of trust with respect to the victims of his fraud scheme within
the meaning of Guidelines § 3B1.3. The government argued at sen-
tencing that Caplinger’s use of his position as a "physician" signifi-
cantly facilitated the commission of the fraud. The government pre-
sented evidence that investors were given (false) information about
Caplinger’s medical background and that this background was touted
as a reason for the likely success of the ImmuStim venture. Based on
this evidence, the district court determined "that it was largely by vir-
tue of the false identification of Mr. Caplinger having these important
sounding degrees and important experience, all of which was con-
veyed to the investors, that the scheme was able to work and that cre-
ated the position of trust." The district court did not clearly err in its
factual finding that Caplinger’s asserted position as a physician facili-
tated the fraud. There is still the question, however, of whether the
district court erred in concluding that Caplinger’s use of his asserted
position as a physician amounted to an "abuse of position of trust" as
that phrase is used in Guidelines § 3B1.3. This ultimate determination
involved a legal interpretation of § 3B1.3, and we review that inter-
pretation de novo. See Gormley, 201 F.3d at 295-96 (reviewing de
novo the district court’s interpretation of "special skill" as used in
§ 3B1.3).
UNITED STATES v. CAPLINGER 13
We recognize, as do other courts, that "[d]etermining what consti-
tutes a position of trust for the purposes of § 3B1.3 is not a simple
task." United States v. Morris, 286 F.3d 1291, 1296 (11th Cir. 2002)
(quoting United States v. Iannone, 184 F.3d 214, 222 (3rd Cir. 1999)).
The commentary to § 3B1.3 provides some guidance for deciding
whether a defendant occupied a position of trust. "‘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)." U.S.S.G.
§ 3B1.3 comment. (n.1) (2000). See also Bolden, 325 F.3d at 504.
The commentary also provides specific examples of when the abuse
of a position of trust justifies the enhancement: "an embezzlement of
a client’s funds by an attorney 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,
comment. (n.1) (2000). Finally, the commentary explains that the "ad-
justment . . . applies in a case in which the defendant provides suffi-
cient indicia to the victim that the defendant legitimately holds a
position of private or public trust when, in fact, the defendant does
not." U.S.S.G. § 3B1.3, comment. (n.2) (2000).
We have emphasized that the "position of trust" inquiry must focus
on the relationship between the defendant and the victim from the
perspective of the victim. United States v. Gordon, 61 F.3d 263, 269
(4th Cir. 1995). "There must be a trust relationship between [the
defendant] and his victim for the enhancement to apply." United
States v. Moore, 29 F.3d 175, 180 (4th Cir. 1994) (internal quotation
marks and citation omitted) (alteration in original). "In the case of an
imposter, it is not merely the defendant’s misrepresentation that justi-
fies the § 3B1.3 enhancement. In every case of fraud, the defendant
will have [gained the] confidence and trust [of] the victim. But fraud
alone does not justify the enhancement." United States v. Bollin, 264
F.3d 391, 415 (4th Cir. 2001). See also Mullens, 65 F.3d at 1567. A
sentencing court must "carefully distinguish between those arms-
length commercial relationships where trust is created by the defen-
dant’s personality or the victim’s credulity," Bollin, 264 F.3d at 415(internal quotation marks and citation omitted), and those "where a
‘fiduciary or personal trust relationship exists’ with [the victim], and
the defendant takes advantage of the relationship to perpetrate or con-
ceal the offense," United States v. Koehn, 74 F.3d 199, 201 (10th Cir.
14 UNITED STATES v. CAPLINGER
1996) (citation omitted). Only the latter circumstances justify the
enhancement. At bottom, § 3B1.3’s critical term — "position of pub-
lic or private trust" — is "a term of art, appropriating some of the
aspects of the legal concept of a trustee or fiduciary." United States
v. Garrison, 133 F.3d 831, 839 n.18 (11th Cir. 1998) (internal quota-
tion marks and citation omitted). In other words, application of the
enhancement "requires more than a mere showing that the victim had
confidence in the defendant. Something more akin to a fiduciary func-
tion is required." United States v. Brunson, 54 F.3d 673, 678 (10th
Cir. 1995). Cf. Bollin, 264 F.3d at 416 (§ 3B1.3 applies when the
defendant has broad discretion to act on behalf of the victim, and the
victim believes the defendant will act in the victim’s best interest);
Moore, 29 F.3d at 180 (defendant must be in a trust relationship with
the victim that permits the defendant to "commit a difficult-to-detect
wrong").
The district court identified "the investors" as the victims of
Caplinger’s fraud scheme. Although the district court did not specifi-
cally identify the investors, it appears that the court was referring to
those individuals who bought shares of IPI, the corporation through
which Caplinger’s venture was run. Caplinger’s relationship with the
investors determines whether he occupied a position of trust. To begin
with, the fact that Caplinger posed as a physician does not by itself
mean that he occupied a position of trust. See Gordon, 61 F.3d at 269("The abuse of trust enhancement was not designed to turn on formal-
istic definitions of job type."). Caplinger did not assume a physician-
patient relationship with any of the victims. Rather, the victims were
simply investors who put their money in IPI (Caplinger’s ImmuStim
marketing venture) based on the solicitations and representations of
Weekly and Kampetis. Weekly and Kampetis, of course, passed on
to the investors information about Caplinger’s portrayal of himself as
a prominent physician. The false information about Caplinger’s cre-
dentials and experience did assist in convincing investors and in mak-
ing them more confident about their investment. But Caplinger had
essentially an entrepreneurial relationship with his investors: he held
himself out as an accomplished physician who would organize, man-
age, and promote the ImmuStim marketing project. Any trust the
investors placed in Caplinger was not based on a special relationship
he had with them as a physician, but on the investors’ misplaced
belief in Weekly’s and Kampetis’s representations about Caplinger’s
UNITED STATES v. CAPLINGER 15
credentials and the ImmuStim project’s potential for success. Com-
pare United States v. Jolly, 102 F.3d 46, 48-50 (2d Cir. 1996) (no
abuse of trust when the defendant solicited loans from investors for
bogus business venture but did not hold himself out as an investment
advisor or broker to the investors); Mullens, 65 F.3d at 1566-67 (no
abuse of trust when the defendant operated a ponzi scheme but did not
hold himself out as an investment broker and did not have a "special,
close, or personal attachment, or fiduciary relationship, with any" of
the investors), with Bollin, 264 F.3d at 415-16 (abuse of trust when
defendants held themselves out as debentures traders and brokers to
their clients); United States v. Hirsch, 239 F.3d 221, 227 (2d Cir.
2001) (same). In sum, although Caplinger’s assumed status as an
accomplished physician was used by Weekly and Kampetis to per-
suade the investors (the victims) to put money into Caplinger’s ven-
ture, the facts do not support the conclusion that Caplinger, by posing
as a physician, occupied a "position of trust" with the victims as that
term is used in § 3B1.3 of the Guidelines. See Morris, 286 F.3d at
1297. We therefore vacate Caplinger’s sentence and remand for
resentencing without the enhancement for abuse of trust.
IV.
To recap, we affirm Caplinger’s money laundering convictions. As
to the determination of his sentence, we affirm the district court’s ref-
erence to the money laundering guidelines, its grouping of the money
laundering and fraud counts under U.S.S.G. § 3D1.2(d), and its com-
putation of the amount of loss. The district court erred, however, in
assessing Caplinger with a two-level enhancement under U.S.S.G.
§ 3B1.3 for abuse of a position of trust. We therefore vacate the sen-
tence and remand the case for Caplinger to be resentenced without
this enhancement.
AFFIRMED IN PART, VACATED
IN PART, AND REMANDED