Sample Sentencing memorandum -- abuse of trust enhancement
C.The defendant abused his position of public trust by
abusing his veterinary/medical license to facilitate his
Pursuant to U.S.S.G. § 3B1.3, a defendant's total offense
calculation is to be enhanced by two levels in instances in which
"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 . . ."
The Probation Office found that this enhancement was
Adjustment for Role in the Offense: It appears that a
two level enhancement, pursuant to § 3B1.3, Abuse of Trust, is
appropriate in this case, as the defendant is a licensed
veterinarian . . . and it appears that the defendant used his
connection as a physician to obtain exorbitant amounts of steroids.
(PSR ¶ 18).
The facts fully support this conclusion. Anabolic steroids
are prescription drugs. (PSR ¶ 4). As such, they are only
lawfully available to an extremely limited class of individuals:
namely, (1) medical professionals licensed under state law to
prescribe or distribute the drugs; and (2) individuals in receipt
of a prescription from a licensed medical practitioner. See
21 U.S.C. § 353(b).
The State of Michigan limits prescribing privileges to a
specified subset of medical professionals. See M.C.L.
§ 333.17708; see also Kelley v. Raguckas,
84 Mich.App. 618, 624, 625, 270 N.W.2d 665, 668, 669 (1978)
(chiropractors not allowed to dispense prescription drugs). Among
those medical professionals lawfully permitted to obtain
prescription drugs are veterinarians, see M.C.L. §
333.17708(2), who have historically been licensed by the state,
see M.C.L. § 333.18805(3); see also
Kerbs v. State Veterinary Board, 154 Mich. 500, 118 N.W. 4
(Mich. 1908). Receipt of a license from the state authorizes a
veterinarian to prescribe and administer prescription drugs as part
of a treatment regimen to animals within their care. M.C.L.
§§ 333.18805(2), 333.17751.
As the PSR reports, anabolic steroids are approved for use as
treatment for a very limited range of medical treatments. (PSR
¶ 4). Their distribution is highly restricted to instances in
which there exists a prescription due to the fact that they have
several known, serious side effects such as "heart disease, kidney
disorders, strokes, sterility, birth defects, jaundice, and cancer
of the liver and prostrate." (Id.). The drugs are also,
however, highly coveted in the black market among bodybuilders and
athletes, who believe that the drugs will increase muscle strength,
lean body mass, endurance, and athletic performance and appearance.
(PSR ¶ 5).
By abusing his veterinary license, the defendant was able to
circumvent the controls designed to prevent the diversion of
anabolic steroids into the black market. By virtue of his position
as a licensed veterinarian, the defendant, without arousing
suspicion, was able to purchase over $775,000 worth of human and
veterinary steroids from domestic manufacturers. (PSR ¶¶
6-7). The defendant then diverted these drugs to intermediate
steroid dealers, who subsequently distributed the drugs throughout
the country. (PSR ¶¶ 8, 6). Without his veterinary
license, the defendant would have been unable to obtain the vast
quantity of steroids that were sought by individuals in the black
market.In providing the defendant with a license to practice
veterinary medicine, the State of Michigan entrusted the defendant
to act in a manner consistent with accepted medical standards and
not to place others' health and welfare at risk. The defendant
betrayed that trust by selling anabolic steroids (which drugs were
known to have serious physical side-effects) to individuals who
wanted the drugs for non-medical purposes such as muscle
enhancement. See United States v. Post, 25 F.3d 599,
600 (8th Cir. 1994) (attorney's license accorded defendant certain
powers and privileges not available to general public--by filing
false claims, defendant abused public trust and significantly
facilitated fraudulent scheme).
In light of these facts, an increase of two levels for abuse
of a position of public trust pursuant to U.S.S.G. § 3B1.3 is
warranted. See id.; see also United
States v. Blandford, 33 F.3d 685, 710 (6th Cir. 1994)
(upholding state legislator's enhancement for violation of public
trust), cert. denied, 115 S. Ct. 1821 (1995);
United States v. Williamson, 53 F.3d 1500, 1525 (10th Cir.
1995) (traffic officer who had special access to information that
was used to facilitate drug operation abused position of public
trust), pet'n for cert. filed (July 12,
1995) (No. 95-5197); United States v. Parker, 25 F.3d 442,
450-51 (7th Cir. 1994) (enhancement appropriate for state trooper
who provided information derived from being officer to facilitate
or conceal criminal activities); United States v. Rehal, 940
F.2d 1, 5-6 (1st Cir. 1991) (same).[FN1]
FN1. The defendant's argument against imposition of
the enhancement is premised upon a faulty proposition, namely that
"the government's own theory is that the actual or intended victims
in this case were body builders or athletes." (Defendant's
Sentencing Memorandum, at 6). This is incorrect. Indeed, the
United States objected to this description of the offense when the
PSR was initially disclosed. (Addendum, at A-2). The defendant's
conduct was not designed to defraud and mislead the consumer, but
was rather designed to defraud and mislead federal and state
regulatory agencies, such as the Food and Drug Administration.
(See id.; PSR ¶ 9). See generally
United States v. Arlen, 947 F.2d 139, 142-44 (5th Cir.
1991), cert. denied, 112 S. Ct. 1480 (1992);
United States v. Cambra, 933 F.2d 752, 755 (9th Cir. 1991);
United States v. Bradshaw, 840 F.2d 871, 874-75 (11th Cir.),
cert. denied, 488 U.S. 924 (1988). The defendant
violated the public trust when he abused the
veterinary license provided to him by the State of Michigan.
See United States v. Shyllon, 10 F.3d 1, 5 (D.C. Cir.
1993) ("[a] public entity can place its trust in the defendant, and
the defendant can use that trust to harm a victim who may not trust
the defendant at all"), cert. denied, 114 S.Ct. 1327
(1994). It is this abuse of the public trust as well as the
defendant's subsequent surreptitious actions designed to evade the
FDA's and the state licensing board's regulatory authority that
gives rise to the enhancement--not any relationship (or lack
thereof) between the defendant and his body builder customers.
See Post, 25 F.3d at 600.
[cited in USAM 4-8.240]