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141.

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 offense

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 warranted:

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]