United States v. Joan Marie O'Brien

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3473
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Joan Marie O’Brien, *
* [UNPUBLISHED]
Appellant. *
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Submitted: July 31, 2006
Filed: August 7, 2006
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Before RILEY, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
For years, Joan Marie O’Brien embezzled money from her employer 3M
Corporation (3M), by requesting checks purportedly intended for charitable purposes
with payee names that were similar to her creditors’ names. O’Brien would have the
checks sent to herself, and then would mail them to her creditors. Eventually the
scheme was discovered, and O’Brien was charged with mail fraud, in violation of 18
U.S.C. § 1341. She pleaded guilty, and over her objection, the district court1 at
sentencing applied a two-level increase for abusing a position of trust, pursuant to
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
U.S.S.G. § 3B1.3. The court sentenced O’Brien to 18 months in prison and 3 years
of supervised release, and ordered her to pay $421,980 in restitution, which included
– also over O’Brien’s objection – $15,000 in labor costs for the time that 3M staff
spent investigating the fraud. O’Brien appeals, reiterating her objections to the
enhancement for abuse of a position of trust and to inclusion of the $15,000 in her
restitution obligation. We affirm.
We find no clear error in the district court’s application of section 3B1.3. See
United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005) (standard of review).
Although O’Brien argues she was merely a low-level employee who needed her
superiors’ approval to request the checks, it is undisputed that she used her access to
3M’s records and computer system to facilitate and conceal her fraud. Regardless of
her rank, her fraud succeeded because her requests were approved with little or no
review given the trust that had been placed in her by her superiors. See United States
v. Erhart, 415 F.3d 965, 972-73 (8th Cir. 2005) (§ 3B1.3 enhancement not clearly
erroneous where trust plainly inhered in relationship and fraud succeeded precisely
because of that trust), cert. denied, 126 S. Ct. 1181 (2006); United States v.
Williamson, 53 F.3d 1500, 1525 (10th Cir. 1995) (even where status itself does not
trigger application of § 3B1.3 enhancement, enhancement is applicable when
defendant used special knowledge, access, or both, that was obtained by virtue of his
or her status, to facilitate fraud).
As to restitution, we find no clear error in the inclusion of the challenged
$15,000. See United States v. Fogg, 409 F.3d 1022, 1028 (8th Cir. 2005) (standard
of review). Although the financial irregularity caused by O’Brien was discovered
during an internal audit that was a regular part of the duties of 3M employees, the full
extent of the scheme was uncovered only after a subsequent investigation. See United
States v. Scott, 405 F.3d 615, 618-20 (7th Cir. 2005) (audit expenses incurred by
employers that defendant defrauded were recoverable under 18 U.S.C. § 3663A).
Accordingly, we affirm.
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