United States v. Thomas Anderson

259 F.3d 853, 2001 U.S. App. LEXIS 17416, 2001 WL 877626
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 6, 2001
Docket00-3086
StatusPublished
Cited by20 cases

This text of 259 F.3d 853 (United States v. Thomas Anderson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh 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. Thomas Anderson, 259 F.3d 853, 2001 U.S. App. LEXIS 17416, 2001 WL 877626 (7th Cir. 2001).

Opinion

*856 RIPPLE, Circuit Judge.

Thomas Anderson was charged with embezzling and wilfully misapplying $30,650 belonging to TCF National Bank (“TCF”) in Hickory Hills, Illinois, in violation of 18 U.S.C. § 656. Mr. Anderson pleaded guilty to the indictment. The district court sentenced him to 41 months’ imprisonment, four years’ supervised release, and a $100 special assessment. The court also ordered him to make restitution in the amount of $62,627.58. Mr. Anderson now appeals various aspects of his sentence. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I

BACKGROUND

A. Facts

Mr. Anderson was employed as an assistant branch manager at TCF from January 1999 through May 1999. In that position, he had access to and control over all TCF customer accounts and access to information relating to bank customers, such as their addresses, dates of birth, account activity and account balances. Additionally, as an assistant branch manager, Mr. Anderson also was able to withdraw amounts in excess of $1,000 from TCF accounts without permission from a supervisor. Ordinary bank tellers had no such authority. While at the bank, Mr. Anderson also supervised a number of bank tellers, including Laurie Mullen and Alia Shehadi. During this time period, Shehadi was seventeen years old.

On March 26, 1999, Lottie Wasserbauer, an 85-year-old TCF customer, came to the bank to withdraw money from her account. Mr. Anderson processed this withdrawal personally. Wasserbauer wished to withdraw only $1,000 from the account, but Mr. Anderson altered the withdrawal slip so that $7,000 was withdrawn instead and kept the extra money for himself. Over a period of time lasting until May 20, 1999, Mr. Anderson made eight more unauthorized withdrawals from Wasserbauer’s account. To do so, Mr. Anderson would take a cash deposit received from a customer and credit it to the appropriate account, but would actually embezzle the money in whole or in part and, in order to balance the TCF general ledger, would debit Was-serbauer’s account in the amount that he had embezzled. In total, Mr. Anderson withdrew $30,650 from the account.

Mr. Anderson hid the proceeds from these unauthorized withdrawals in two ways. He opened a TCF account in the name of his brother, Joel Anderson, and deposited some of the money in that account. He then wire transferred a portion of those funds to an account in the name of Joel Anderson at the First National Bank of Omaha in Omaha, Nebraska. Additionally, Mr. Anderson deposited a portion of the Wasserbauer funds into a CD account that he established in a friend’s name. In pleading guilty, Mr. Anderson admitted that he used all of the proceeds from these unauthorized withdrawals for his personal benefit.

B. District Court Proceedings

After Mr. Anderson pleaded guilty to the charge in the indictment, the district court held a sentencing hearing on August 2, 2000. At that time, the Government presented as relevant conduct evidence of two types of additional unauthorized withdrawals, both of which it claimed were made by Mr. Anderson. First, the Government presented evidence that Mr. Anderson, on his own or with the help of unsuspecting tellers, made unauthorized withdrawals from the CD accounts of another elderly TCF customer, 88-year-old Bertha Kern. Additionally, the Government presented evidence that Mr. Anderson used unwitting TCF tellers to *857 make two additional withdrawals from the Wasserbauer account and then kept the money for himself.

At the sentencing hearing, Mr. Anderson testified that from March 26, 1999 to May 20, 1999, he took $30,650 from Wasserbauer’s account. He explained that he used his teller identification number to make each of the unauthorized withdrawals and that he performed the transactions on his own. Mr. Anderson explained that, while processing Wasserbauer’s withdrawal when she visited the bank on March 26, 1999, he asked if she would like to move her money to an account that would produce a greater return. Wasserbauer declined the offer. Nevertheless, Mr. Anderson stated that he then determined to move Wasserbauer’s money into higher — yielding CD and brokerage accounts. He testified that he intended only to keep the interest that those accounts generated and that he planned to eventually return all of the money that he had taken from Wasserbauer to her account at TCF. Mr. Anderson further explained that the FBI met with him on June 9, 1999, and informed him that they suspected that he had embezzled the Wasserbauer funds. After that meeting, Mr. Anderson returned all of the money he had taken from Wasserbauer’s account to the bank. He claimed that he was not responsible for either the unauthorized withdrawals from the Kern accounts or the two additional unauthorized $1,000 withdrawals from the Wasserbauer account that involved the use of bank tellers.

At the conclusion of the sentencing hearing, the district court determined that the Government had proven by a preponderance of the evidence that Mr. Anderson was responsible for the unauthorized withdrawals from the Kern account and the two additional unauthorized withdrawals from the Wasserbauer account. It therefore treated these actions as relevant conduct for sentencing purposes. Additionally, the court found that Mr. Anderson had lied under oath when he (1) denied that he was responsible for that relevant conduct and (2) testified that he always had intended to return the funds from the unauthorized Wasserbauer withdrawals that were charged in the indictment. As a result, the court imposed a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. Due to its finding of perjury, the court also declined to grant Mr. Anderson a three-level reduction in his sentence for acceptance of responsibility under U.S.S.G. § 3E1.1. Next, the court determined that it also would enhance Mr. Anderson’s sentence two levels for the abuse of a position of trust under U.S.S.G. § 3B1.3. It noted that Mr. Anderson’s position as an assistant branch manager allowed him the discretion to make withdrawals in excess of $1,000 from Wasserbauer’s account without supervision, authority that made his crime easier to accomplish. Lastly, the court found that a two-level enhancement under U.S.S.G. § 3B1.4 for the use of a minor to commit a crime also was proper because Mr. Anderson had used Shehadi, then seventeen years old, to unwittingly make unauthorized withdrawals for his benefit from the Wasserbauer and Kern accounts.

As a result of these findings and other enhancements not challenged here, the district court sentenced Mr. Anderson to 41 months’ imprisonment, four years of supervised release, and a $100 special assessment. The court also directed him to make restitution in the amount of $62,627.58. Mr. Anderson now appeals various aspects of his sentence.

II

DISCUSSION

A. Relevant Conduct

Mr. Anderson first challenges the district court’s finding that he was responsi *858 ble for the withdrawals from the Kern accounts and the two additional withdrawals from the Wasserbauer account that the Government offered as relevant conduct.

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Cite This Page — Counsel Stack

Bluebook (online)
259 F.3d 853, 2001 U.S. App. LEXIS 17416, 2001 WL 877626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thomas-anderson-ca7-2001.