United States v. Giesse

CourtCourt of Appeals for the Tenth Circuit
DecidedMarch 10, 1999
Docket98-8027
StatusUnpublished

This text of United States v. Giesse (United States v. Giesse) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Giesse, (10th Cir. 1999).

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 10 1999 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, v. No. 98-8027 (D.C. No. 97-CR-077-D) ROBERT L. GIESSE, (District of Wyoming)

Defendant-Appellant.

ORDER AND JUDGMENT*

Before BRORBY, Circuit Judge, KELLY, Circuit Judge, and McWILLIAMS, Senior Circuit Judge.

The only issue in this appeal is whether the district court erred in increasing

Giesse’s offense level by two levels because his victim was a “vulnerable victim” as

provided for in the United States Sentencing Guidelines (“USSG”) § 3A1.1(b).1

We conclude the district court did not err in so doing, and therefore affirm.

Pursuant to a plea agreement, Robert L. Giesse pled guilty to Count One of a four

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3 1 USSG § 3A1.1 appears as Attachment A. count indictment, which count charged him with mail fraud under 18 U.S.C. § 1341. In

the plea agreement, the government agreed to recommend a downward adjustment in

Giesse’s offense level of three levels for acceptance of responsibility (which the district

court later made, although somewhat reluctantly), but the agreement left open any

possible upward adjustments in Giesse’s offense level. The district court accepted

Giesse’s plea of guilty and later sentenced him to imprisonment for 30 months to be

followed by three years of supervised release, conditioned on payment of a $50.00

special assessment and restitution in the amount of $50,000.00. In imposing sentence,

the district court made three two-level upward adjustments in Giesse’s offense level: one

for more than minimal planning; a second for abuse of a position of trust; and a third

pursuant to the “vulnerable victim” provision of USSG § 3A1.1(b). Giesse only appeals

the upward adjustment of his offense level based on USSG § 3A1.1(b).

The presentence report recommended a two level increase in Giesse’s offense

level pursuant to USSG § 3A1.1(b). In this regard, the presentence report read as

follows:

Victim-Related Adjustments: Pursuant to USSG 3A1.1(b), a two level increase for a vulnerable victim enhancement appears appropriate. When approached by Giesse to bring her financial portfolio under his management, the victim was a recent widow who was also unsophisticated in financial matters. Prior to her husband’s death, the victim had never filled out or signed a check. All financial matters had been left to her husband. The victim was particularly susceptible to Giesse’s criminal conduct because he knew she was unsophisticated towards the financial responsibilities she had

-2- suddenly encountered. He admits as much in his defendant’s statement through his claim she had spent nearly $115,000 of a $150,000 settlement, and had nothing set up. As a recent widow whose husband had always taken care of financial matters, Giesse clearly understood he was dealing with a vulnerable individual. (Emphasis added.)

Counsel filed an objection to the recommendation in the presentence report that

there be a two level upward adjustment under USSG § 3A1.1(b). (It is apparently agreed

that the statement contained in that recommendation that “[p]rior to her husband’s death,

the victim had never filled out or signed a check” was, in fact, incorrect.) The foregoing

objection, along with other objections, was heard by the district court at the sentencing

hearing. The only witness testifying at the sentencing hearing was the victim,

Dorothy Robarge. At the conclusion of that hearing, the district court, after argument of

counsel, held that, based on the presentence report and the testimony of Dorothy Robarge,

a two level upward adjustment under USSG § 3A1.1(b) was warranted. The court’s

colloquy in this regard is set forth in Attachment B to the order and judgment.

From the record we learn that Dorothy Robarge, a 40-year old widow when she

met Giesse, was the victim of Giesse’s criminal activities. At the age of 17, Ms. Robarge

dropped out of high school and married her childhood sweetheart, Leroy Robarge. She

thereafter assumed the role of homemaker in a marriage that produced four children,

while Mr. Robarge was responsible for the income and financial security of the family. In

addition to raising their four children, the Robarges assumed the care of Ms. Robarge’s

developmentally disabled sister and her daughter. Ms. Robarge had a very limited

-3- experience working outside the home, having previously worked as a motel maid and a

highway construction flagger, each for a period of only a few months, prior to her

husband’s death. Mr. Robarge, an electrician at a cement plant, was killed in a work

related accident in 1991.

Upon the death of her husband, Ms. Robarge received approximately $100,000.00

in life insurance benefits. She later initiated a wrongful death action against her deceased

husband’s employer. While this suit was pending, Ms. Robarge first met Giesse. He at

the time was a registered securities agent for Mutual of Omaha Investor Services and a

registered life insurance agent for Mutual of Omaha, and was doing business as Gem City

Investments, Inc. in Laramie, Wyoming. Their introduction occurred through her son,

Christopher, who had worked as a clerk at a local Laramie motel and had met Giesse’s

wife, who also worked at the motel. Christopher met Giesse who would occasionally

drop by the motel to visit his wife. Christopher suggested to his mother that she consult

with Giesse concerning her investment portfolio. About the same time, Giesse offered

Christopher a job as an agent in his office, even though Christopher had no prior

experience in this sort of business activity. Ms. Robarge thereafter met with Giesse to

discuss her financial situation. Giesse advised Ms. Robarge that her “whole portfolio was

at risk.” About this time Ms. Robarge settled her lawsuit against her late husband’s

employer and shortly thereafter turned over about $350,000.00 to Giesse to manage on

her behalf, which sum included insurance benefits as well as the settlement monies

-4- realized from her wrongful death claim. Suffice it to say, Giesse misappropriated about

$250,000.00 of Ms. Robarge’s monies to his personal use, in the course of which he used

the U.S. mail. All of this came to a head in early 1996 when Ms. Robarge, who had

become “suspicious,” turned to an attorney for assistance. An investigation of the matter

resulted in the present prosecution of Giesse for mail and wire fraud, and his plea of

guilty to the one count of mail fraud.

As indicated, counsel’s position on appeal is that the district court erred in

increasing Giesse’s base offense level by two levels under the “vulnerable victim”

provision of USSG § 3A1.1(b). That guideline provides that an offense level shall be

increased by two levels if the defendant knew or should have known that his victim was

“unusually vulnerable” due to age, physical or mental condition or if the victim was

“otherwise particularly susceptible” to the criminal conduct.

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