United States v. Friedberg, Docket No. 08-3763-cr (2d Cir. March 2, 2009) (found here)
Friedberg plead guilty to five counts of tax evasion for not having reported $562,000 that he embezzled from the Independent Order of Odd Fellows, for which he served as Grand Secretary. At sentencing, the court imposed a two level enhancement for "abuse of position of trust." On appeal, Friedberg conceded that he abused a position of trust with respect to the Odd Fellows by virtue of his embezzlement. But he argued that that abuse could not support a sentencing enhancement because he did not occupy a position of trust with respect to the government, which was the primary victim of his tax evasion.
Writing for the Second Circuit, Judge Preska (sitting by designation) noted the commentary for the abuse of trust enhancement, which states that a court must consider the defendant's role in the offense based on relevant conduct, and relevant conduct is not limited to the "elements and acts cited in the count." The Second Circuit then noted a split in the circuits over the question of whether uncharged embezzlement is relevant conduct for purposes of the abuse of trust enhancement. Ultimately, it sided with those circuits holding that it could be considered. More specifically, Judge Preska wrote that:
. . . .
We hold that where, as here, a defendant's tax evasion was part of a larger scheme constituting relevant conduct, an integral part of which involved abusing a position of trust, the sentencing court may properly apply an enhancement under U.S.S.G §3B1.3.