United States v. Reccko

• Court: Court of Appeals for the First Circuit
• Decided: August 12, 1998
• Docket: 98-1176
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1176



                    UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                        SHIRLEY P. RECCKO,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF RHODE ISLAND



             [Hon. Mary M. Lisi, U.S. District Judge]


Before



            Selya, Boudin and Lipez, Circuit Judges.


Thomas G. Briody, by appointment of the court, for appellant.

     Richard W. Rose, Assistant United States Attorney, with whom

Margaret E. Curran, United States Attorney, was on brief, for

appellee.


August 10, 1998


SELYA, Circuit Judge.  This single-issue sentencing

appeal requires us to decide whether the district court properly

applied the two-level enhancement for abuse of a position of trust,

USSG 3B1.3 (1997), in calculating the defendant's guideline

sentencing range (GSR).  Concluding, as we do, that the court

erred, we vacate the defendant's sentence and remand for

resentencing.

I.  BACKGROUND

  The relevant facts are not seriously disputed.  The

defendant, Shirley P. Reccko, was a civilian employee of the city

of Warwick, Rhode Island.  She toiled as a receptionist/switchboard

operator at police headquarters, handling incoming telephone calls

and notifying persons in authority when visitors arrived at the

stationhouse.

  On December 14, 1995, several groups of Drug Enforcement

Administration (DEA) agents came to the station to see a narcotics

detective.  The defendant observed the influx and told her drug-

dealer friend, Patrick Vigneau, what she had seen.  After receiving

the tip, Vigneau directed his supplier to cancel a sizable

marijuana delivery that had been scheduled to take place that

evening at a Warwick motel.  As matters turned out, one of the

participants in the planned transaction was a government informant,

and the DEA agents had gathered at the police station preparatory

to interceding in that very delivery.  Its abrupt cancellation

thwarted their stratagem.

  In the long run, however, the DEA prevailed.  Agents soon

arrested Vigneau's supplier, who cooperated with the government and

inculpated Vigneau.  The supplier-turned-cooperating-witness also

confirmed the link between the defendant's tip and the cancellation

of the delivery   a piece of information that the authorities

easily corroborated, as the defendant had spoken with Vigneau on a

monitored line.

  Reccko ultimately pled guilty to a charge that she

unlawfully gave notice of an impending search and seizure.  See 18

U.S.C.A.  2232(b) (West Supp. 1994).  At the disposition hearing,

the parties quarreled over the GSR.  As relevant here, the

defendant asseverated that her offense level should not be elevated

pursuant to USSG 3B1.3 because she did not hold a position of

trust.  The district court nonetheless applied the enhancement,

thereby boosting the offense level and yielding a GSR of 15-21

months.  The district court then imposed an incarcerative sentence

at the bottom of the range.  This appeal ensued.

II.  DISCUSSION

     The defendant, ably represented by appointed counsel,

contends that the district court misinterpreted section 3B1.3 by

expanding the "position of trust" rubric to include a

receptionist/switchboard operator whose duties included no

significant discretionary functions.  We review the district

court's interpretation of the sentencing guidelines, and, thus, its

handling of this interpretive question, de novo.  See United Statesv. Tardiff, 969 F.2d 1283, 1289 (1st Cir. 1992) ("The court of

appeals must determine for itself the legal meaning of terms such

as 'position of public or private trust.'").

     The disputed guideline provides in pertinent part:

     If the defendant abused a position of public

     or private trust . . . in a manner that

     significantly facilitated the commission or

     concealment of the offense, increase [the

     defendant's offense level] by 2 levels.



USSG 3B1.3.  The commentary indicates that the enhancement

"applies to persons who abuse their positions of trust . . . to

facilitate significantly the commission or concealment of a crime." 

Id., comment (backg'd).

     On a superficial reading of this language, a

receptionist/switchboard operator position at police headquarters

might well seem to be a position of trust.  After all, police

headquarters is the nerve center of local law enforcement, and one

ought to be able to "trust" any person employed there.  The

sentencing guidelines, however, create their own vocabulary   and

the guidelines sometimes define terms in ways that might strike lay

persons as peculiar.  So it is here:  in the idiom of the

sentencing guidelines, the term "position of public or private

trust" has a special meaning.  The application notes, as amended in

1993, explain that positions of trust are characterized by

significant discretion and minimal supervision:

     "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

     enhancement to apply, the position of 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).  This adjustment, for example,

     would apply 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.  This adjustment would not apply

     in the case of an embezzlement or theft by an

     ordinary bank teller or hotel clerk because

     such positions are not characterized by the

     above-described factors.



Id., comment. (n.1).

     Consistent with this application note's stated method, we

have directed sentencing courts to conduct a two-step inquiry into

the possible applicability of an enhancement under section 3B1.3. 

First, the court must determine whether the defendant occupied a

position of trust at all.  If not, the inquiry ends and no

enhancement accrues.  If, however, this initial query produces an

affirmative response, the court must proceed to ascertain the

extent to which the defendant used that position to facilitate or

conceal the offense.  See United States v. Gill, 99 F.3d 484, 489

(1st Cir. 1996); United States v. Santiago-Gonzalez, 66 F.3d 3, 8

(1st Cir. 1995).

     Here, the lower court noted that the defendant's

particular situation was not covered explicitly either by the

guideline commentary or by existing precedent, and so proceeded to

"discern from the guidelines themselves what the intent of the

Sentencing Commission was."  In the course of this exercise, the

court concluded that, because the defendant was exposed to

sensitive information in her public employment and used that

information illicitly, she abused a position of public trust.  The

court reasoned:

          This Defendant, although she did not

     hold a position as a police officer or as a

     police dispatcher, held a position of trust. 

     She was in a unique position to take incoming

     phone calls and to route individuals [from]

     outside of the Warwick Police Department to

     the appropriate location within the building

     for purposes of their massing for what was to

     be a drug raid.  She had the ability to take

     those calls.  She knew who was calling.  She

     had to ask people who they were in order to

     send them to the right place within the

     building.  And so she was uniquely situated to

     receive extremely sensitive information, which

     she then took upon herself and initiated the

     contact with [the drug-dealer] to give him the

     very sensitive information which he needed . .

     . .



                       *        *        *



          So I find that on this unique set of

     facts, with an individual who is employed by a

     public agency, a public agency that happens to

     be the police department whose

     responsibilities are public safety, and where

     she was in the significant and unique position

     to tak[e] in sensitive information, that she

     abused the trust that was placed in her by

     taking that very information and taking the

     initiative to call [the drug-dealer] to head

     off the raid.



     We do not believe that the district court's analysis

squares with the special meaning of "position of public or private

trust" that the guidelines prescribe.  In essence, the court

eschewed the two-step approach specified by our cases and instead

conflated the requisite inquiries.  Rather than asking, first,

whether the defendant held a position of trust, and if so, whether

she used that position to facilitate a crime, the court essentially

determined that the defendant held a position of trust precisely

because her job enabled her to commit the crime.  We conclude that

this was error.

     The foremost flaw in the court's reasoning is that it

ignores the attributes of a position of trust limned in the

controlling application note.  This omission is telling, as

guideline commentary is binding unless it violates federal law, is

inconsistent with the guidelines themselves, or is based upon a

plainly erroneous reading of a guideline provision.  See Stinson v.

United States, 508 U.S. 36, 42-43 (1993); United States v. Fiore,

983 F.2d 1, 2 (1st Cir. 1992).  The commentary here suffers from

none of these vices.  Thus, the sentencing court should have

adhered to the application note.  The court did not do so. 

Instead, the court deviated from it by failing to account for

whether the receptionist/switchboard operator position embodied the

kind of "professional or managerial discretion" that the Sentencing

Commission has made the signature characteristic of a position of

trust.  See USSG 3B1.3, comment. (n.1); see also United States v.

Becraft, 117 F.3d 1450, 1452-53 (D.C. Cir. 1997); United States v.

McMillen, 917 F.2d 773, 775 (3d Cir. 1990).

     When a sentencing court erroneously applies a guideline,

we often remand for the court to make a new finding.  See, e.g.,

United States v. Jackson, 30 F.3d 199, 204 (1st Cir. 1994); United

States v. Mariano, 983 F.2d 1150, 1157 (1st Cir. 1993).  Here,

however, the undisputed facts indicate quite plainly that the

defendant's position was not invested with any substantial degree

of discretion.

     Reccko answered the telephone and relayed calls.  She

also announced visitors, but she did not have discretion either to

screen them or to admit them to the non-public areas of the

stationhouse.  She was closely supervised, and the telephone lines

that she regularly used were monitored.  All in all, Reccko's

position afforded her access to information, but reposed in her no

discernible discretion.  Indeed, at oral argument in this court the

prosecutor admitted that the receptionist/switchboard operator

position involved no significant discretionary authority.  Under

these circumstances, we deem the receptionist/switchboard operator

job to be on a par with the bank teller and hotel clerk positions

that the Sentencing Commission identified as non-trust positions. 

See USSG 3B1.3, comment. (n.1).  By like token, the job is a fair

congener of other non-professional, non-managerial posts in public

and private employment that courts routinely have found not to be

positions of trust.  See, e.g., United States v. Ragland, 72 F.3d

500, 503 (6th Cir. 1996) (customer service representative at bank);

United States v. West, 56 F.3d 216, 220 (D.C. Cir. 1995) (courier);

United States v. Smaw, 22 F.3d 330, 332 (D.C. Cir. 1994) (time-and-

attendance clerk for federal agency).

     The government's counter-arguments lack force.  It

asserts, first, that despite the Commission's apparent insistence

that positions of trust are characterized by significant discretion

and minimal supervision   attributes that the government concedes

are absent here   our decisions have expanded the contours of the

Commission's definition.  To substantiate this claim, the

government cited at oral argument our opinion in United States v.

Innamorati, 996 F.2d 456 (1st Cir. 1993).  Innamorati cannot bear

the weight that the government loads upon it.

     To the extent relevant, the Innamorati case involved a

defendant, one Thompson, who had been a police officer at the

Registry of Motor Vehicles and had employed that position to obtain

access to information later used to facilitate a drug-trafficking

conspiracy.  See id. at 490.  Police officers regularly exercise

significant discretion, and, thus, Thompson occupied a position of

trust.  See id. (citing United States v. Rehal, 940 F.2d 1, 5 (1st

Cir. 1991)).  It made no difference that Thompson was assigned to

desk duty.  See id.  From this brief account, it is readily

apparent that the Innamorati decision does not in any way, shape,

or form support the claim that a closely supervised position which

lacks meaningful discretion nevertheless can be regarded as "a

position of public or private trust" under section 3B1.3 merely

because occupying the position makes it easier for the holder to

gain access to facilitative information.

     It is true that in dealing with the position-of-trust

enhancement courts occasionally have emphasized the employee's

freedom to commit wrongs that defy facile detection.  See, e.g.,

Tardiff, 969 F.2d at 1289; United States v. Hill, 915 F.2d 502, 506

(9th Cir. 1990).  But these decisions deal with earlier versions of

section 3B1.3 and, thus, antedate the Sentencing Commission's

emphasis on managerial or professional discretion (which was

inserted into the application note by an amendment that took effect

on November 1, 1993).  In all events, the paradigm has no bearing

here.  The defendant's position did not furnish her with any such

freedom, as most of the telephone lines at the station   including

the line that she used when speaking to Vigneau   were continuously

monitored.  This circumstance virtually ensured that her tip would

be easily detected (as, indeed, it was).

     The United States also suggests that the general public

safety function of the police department transforms the

receptionist/switchboard operator position to one of public trust. 

We think not.  Although this court, as in Innamorati, 996 F.2d at

490 and Rehal, 940 F.2d at 5, has not hesitated to affirm section

3B1.3 enhancements as applied to police officers who commit certain

offenses, we see no principled basis for extending the enhancement

to civilian employees of a municipality, assigned to work at police

headquarters or comparable venues, whose jobs do not possess the

requisite accouterments of positions of trust.  Accord United

States v. Long, 122 F.3d 1360, 1365-66 (11th Cir. 1997) (holding

that prison food service foreman was not in a position of trust for

purposes of section 3B1.3).

     We have one more bridge to cross.  The commentary to USSG

3B1.3 contains an express exception for postal workers, rendering

the position-of-trust enhancement applicable to any postal employee

committing certain enumerated offenses, regardless of the incidence

vel non of discretion.  The Sentencing Commission has explained

that "because of the special nature of the United States mail, an

adjustment for an abuse of a position of trust will apply to any

employee of the U.S. Postal Service who engages in the theft or

destruction of undelivered United States mail."  USSG 3B1.3,

comment. (n.1).  The district court apparently believed that this

exception strengthened the case for applying section 3B1.3 to

Reccko, and the government indicates its agreement with this

proposition.  We demur.  There is simply no basis, either in

language or in policy, for expanding the postal workers' exception

beyond its terms.  The maxim "expressio unius est exclusio

alterius" is a useful interpretive tool in construing the

sentencing guidelines.  See Smaw, 22 F.3d at 332-33; United Statesv. Newman, 982 F.2d 665, 673-74 (1st Cir. 1992).  If the Sentencing

Commission had intended additional types of public employees to be

subject to the position-of-trust enhancement without regard to

their level of professional or managerial discretion, it doubtless

would have said so.

III.  CONCLUSION

     We need go no further.  We recognize that there may well

be sound arguments for enhancing the sentence of a public employee

who, though supervised and lacking in discretion, is peculiarly

situated to imperil law enforcement activities and even to

jeopardize the safety of police officers through unlawful conduct. 

Withal, the guidelines say what they say   and rewriting them is a

matter for the Sentencing Commission, not for the courts. 

Consistent with the guidelines as written and explained by the

Sentencing Commission, we conclude that the defendant did not hold

a position of trust within the meaning of USSG 3B1.3.  Because the

district court erroneously ruled to the contrary, we vacate the

defendant's sentence and remand for resentencing.



     Vacated and remanded.