United States v. Sirotina, et al., No. 04-2987-cr(L) (2d Cir. Nov. 21, 2006)
This decision is of interest because the Honorable Sandra Day O'Connor, Asssociate Justice Retired of the Supreme Court of the United States, sat by designation.
The primary sentencing issue addressed was the question of whether one who manages a fraudulent enterprise but who had no direct contact with the victims of that fraudulent enterprise (in this case a financial fraud) can have abused the victim's trust, exposing the defendant to an enhancement for abuse of a position of trust pursuant to U.S.S.G. 3B1.3. The Second Circuit found that the district court properly applied the abuse of a position of trust enhancement because the defendant at issue "perpetrated the appearance of legitimacy of a company which was designed  precisely to induce the trust of its victims." In light of the commentary to U.S.S.G. 3B1.3 -- which largely indicates that the abuse of a position of trust must arise from actual contact with or an actual relationship between the defendant and the victim -- the Second Circuit's conclusion is somewhat questionable. Indeed, the Second Circuit itself seemingly recognized this disctinction because Sirotina addressed abuse of position of trust challenges brought not only by a defendant who had no direct victim contact but also by a defendant who "had direct contact with victims at a client lunch used to conceal a broker's identity."
Does Sirotina improperly expand the scope of the abuse of position of trust enhancement? Let us know your thoughts.