United States v. Thorn, 446 F.3d 378 (2d Cir. 2006)
Section 3B1.1 of the Guidelines provides for a two-level enhancement for "Abuse of Position of Trust or Use of Special Skill." Specifically, that section provides that if "the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase [the offense level] by 2 levels." This enhancement therefore involves a two-prong analysis:
(1) Did the defendant abuse a position of public or private trust OR use a special skill?
(2) Did the defendant abuse that position of public or private trust OR use that special skill in a manner that significantly facilitated the commission OR concealment of the offense?
The enhancement can only apply when both questions are answered affirmatively. Thorn is essentially a case in which the Second Circuit found that the district court failed to ask both questions. As a result, the Second Circuit remanded the case for resentencing with a specific instruction that the district court impose a two-level enhancement pursuant to Section 3B1.3.
More specifically, Thorn was hired one Terry Pandolfi (a homeowner and mother of two young children) to undertake an asbestos abatement project in her basement. Thorn told Pandolfi the steps he would take to properly remove the asbestos, and assured Pandolfi "that the asbestos was going to be properly removed; it would be removed and all the work performed when [the] children and [Pandolfi] were out of the house; that the work would be completely done and [Pandolfi] would have absolutely no exposure to any asbestos as a result of any of the work performed." Thorn also specifically assured Pandolfi that his would work would comply with the laws and regulations associated with asbestos abatement.
Surprise, surprise. Thorn's work was undertaken without proper containment and clean up, in violation of the Clean Air Act. At his initial sentencing, the district court declined to apply a two-level enhancement pursuant to Section 3B1.3 of the Guidelines. The district court, however, did not rule out the possibility that Thorn could have occupied a position of trust because his clients (like Pandolfi) deferred to him because of his skill rather than as a result of a special relationship of trust and confidence. On initial appeal, the Second Circuit remanded with a specific direction that the district court consider the degree of discretion accorded to Thorn by his clients, stating "we remand this issue to the District Court for specific findings consistent with this opinion, including whether any customers entrusted Thorn with discretion to complete the asbestos projects without supervision and without relying on the independent laboratory test results to confirm compliance with state and federal regulations. If the District Court were to find that one or more clients did grant such discretion and that this discretion put Thorn in a position of trust under 3B1.3, the District Court would then need to make a specific finding whether Thorn used such a position of trust in a manner that significantly facilitated the commission of concealment of the offense."
On remand, the district court found that Pandolfi had provided Thorn with "absolute discretion" in completing the asbestos abatement project at her home and that she paid him without obtaining an independent laboratory test because of his statements to her and the resulting trust that she placed in him. The district court thus found that Thorn was arguably in a position of trust, but did not apply the Section 3B1.3 enhancement because "it does not necessarily follow that [Thorn] used his position of trust in the manner that significantly facilitated the commission or concealment of the offense. Defendant did not appear to try to conceal his shoddy work . . . ."
On appeal once again, the Second Circuit criticized the district court for not asking the right questions. Specifically, the Second Circuit found that the district court had properly considered whether or not Thorn was in a position of trust vis-a-vis Pandolfi and had properly considered the question of whether or not Thorn used that positon of trust to try to conceal his offense. According to the Second Circuit, however, the district court had not asked whether or not Thorn used his position of trust to commit (as opposed to conceal) his offense. And, rather than remand for re-sentencing a second time, the Second Circuit just stepped in and made that finding for the district court. Specifically, the Second Circuit found that the "finding that defendant used his special skills to get hired and secure 'absolute discretion' in doing the job is sufficient as a matter of law to establish that Thorn used his special skill to facilitate the crime." Thus, the Second Circuit remanded the case to the district court and instructed the district court to impose a two-level enhancement pursuant to Section 3B1.3 of the Guidelines.
Thorn is troubling for (at least) three reasons. First, it seems that the district court did, in fact, answer the question that the Second Circuit said that it had not. Specifically, the district court found that "it does not follow" from a finding that Thorn was in a position of trust that he "used his position of trust in the manner that significantly facilitated the commission or concealment of the offense." That the district expanded further on the "concealment" prong of this analysis does not mean that the district court did not also consider the "commission" prong. Indeed, the foregoing quotation indicates that the district court had, in fact, considered whether or not Thorn used his position of trust in a manner that significantly facilitated the commission or concealment of the offense. Second and even if the district court had not answered the question that the Second Circuit says that it did not answer, the district court is the proper place for consideration of that question. Thus, the Second Circuit properly should have remanded this case for re-sentencing rather than stepping in and answering a question that the district court properly should have answered (and was in a better position to answer). Finally, the Application Notes to Section 3B1.1 provide examples of persons who abuse a position of public or private trust, such as: (1) an attorney who embezzles client funds for which he/she is acting as guardian; (2) a bank executive's fraudulent loan scheme; and (3) the criminal sexual abuse of a patient by a physician under the guise of examination. While the Application Notes surely were not intended to restrict application of Section 3B1.3 to legal, financial and medical professionals, all such examples do involve circumstances wherein the actor comes to the situation with certain credentials that objectively result in/create the position of trust that they occupy -- unlike an individual engaged in the business of asbestos abatement. The Second Circuit may therefore have taken a too expansive view of what type of person can occupy a position of public or private trust.