cement for many decades was an employee of a small credit union near muskegon michigan during that time she was able to embezzle one point nine million dollars i think it was referred to during sentencing as a jaw dropping amount because it is she did it over seventeen years and as anyone who reads the transcript would see she did it four hundred thirty three times because that number is mentioned more than a couple handfuls of times she received a sentence that's seventy eight months which is at the low end of the guideline range is computed by the district court twenty eight that took district courts determination of a guideline range of twenty eight was in error on three occasions and i think that you what you see is use as you view that the sentencing that the sentence was actually a result of the one point nine million dollars over seventeen years and four hundred thirty three times but that isn't the standard for the three specific offense characteristics which the district court  sophisticated means putting in jeopardy the soundness of the credit union and an abuse of trust it instead was a result of the large amount the number of times about it surely because all bank trusts are bank tellers are in a position of trust and when they violate that trust in charge of the unit she was not only a teller when she started but she also evolved into a manager over the other people in that institution occupied based on her position and all of that a position a special position of trust you know not in that not in the context of bank involvement not in the context of a bank teller  guideline itself tells us it doesn't apply if you're looking at a big if if that man to death and who have been in the bank who occupy the position of trust that no one no not at all and this court this court over the years since two thousand and two starting with humphrey and ending in two thousand and eleven with sweden there's all bunch of cases in between has has been very specific that it doesn't the question for the court to ask itself is not the degree of supervision it's the degree of discretion that the employe men did supervise these employees no question about it and frankly she was not very well supervised herself but this court on numerous occasions say it's not the monist supervision either that she exercises  a number of methods to cover up the thing her actions that that certainly is more than just what the bank and put money in your purse i mean she had these different observation the defendant's own observation of the conduct that they knew occurred they had agreed not with each other but just agreed that it wasn't sophisticated it wasn't sophisticated because as the government said at sentencing and which i fully agree with here's what she did each and every day she took cash out of a file cabinet they called it the vault it was unlocked she took cash out of habit stuck it in her purse and for the most part went home some time she walked around the corner actually a corner of the daily that put the money supposedly in another cash drawer for years and years and years she could cover it up in the sense that none of her superiors would it be clever enough to figure it out until the credit union went broke or almost broke now you know it's got candidly that's a reflection of her superiors because as soon as an auditor came in who was it who wasn't satisfied with her simple lack answer the markets shell game the money isn't here it's there  sophisticated she to put the money in her purse she went home this is not some fancy computer entries that are going to be lost in cyberspace someplace you put in her purse and took it home to no author thank larceny four hundred thirty three times so no auditor pick this up for seventeen years that's correct same auditors they would come in and they'd they can do it happen if she would say they'd say that's a lot of cash that you have in your corresponding banks your royal really ought to think about in wasn't satisfied with this shell game and said i need to see those records and they weren't there she knew they were there she knew that the state you know in response to you got to move some of the money so i could do that doesn't that c speak to her discretion i'm sorry i didn't as it doesn't back out to speak to the discretion that she had about where to park or invest money you think that she really didn't have any discretion but this question on behalf of that mental institution it wasn't discretion as this court has used it from humphrey to sweet and the cases in between then and this court and speaking broadly this court has said over and over again that that's handling money and i don't see that is this is out of bounds and do you have and you and you have told the district court continuously and this was more back to abuse of trust but you've told the district courts continually that it's not the amount of supervision the person had that it's the amount of the ability that they had indiscretion managing money not handling money and i mean i've shifted there from sophisticate of course to the position of skill and trust but it's still you have told the disc or seven times that when they when they be awarded if that's the car proper term awarded abuse of skill or trust to it to a bank teller or person like a bank teller calling the manager had teller vault teller it didn't matter that you don't look to the lack of supervision you don't look that they were able to handle money and the discretion to handle money you look at how they could manage money and off catherine symon did was take it used her own teller number but they would do essentially the same thing when they took money out of a drawer out of the cash drawer it had to be recorded someplace and they were recorded going into her own their own drawers in a ceremony recorded going into this this fictitious drawer and she also created accounts for family members accounts for them to help in her scheme that was not part of the scheme that was waived that one point nine million dollars a lot of money she could spend it on actually didn't spend much of it herself a lot of it went to a deadbeat son who with a drug problem and horse problem they had money was just going left and right that she just walked out and put it in tel that's how she was giving money away to the other accounts had nothing to do with her attributes and it's a lot of money just before my time expires i do want to mention the sophisticated me are the sounds you know thirteen or you go into that what standard of review  wasn't one point nine million dollars instead it was one point two or if we disagreed on the the a number of times or if we disagreed on the years it would be different so the district court's finding of fact we agree on the facts  doesn't make a difference here is that it you're saying no i'm saying that because we agree on the facts that the deference to clear that the deferential standard of clear error doesn't apply and instead it should be denial as to the way the court applied those facts as where the clock court applied those facts to these various special of defense case characteristics i know thirteen there are for this it back this is back to the soundness there are four questions good morning on may please the core behalf of the government and i like to begin on this last point about what the standard view is and i would urge your honour's to take a look at the supreme court case of the united states versus one twenty one s court twelve seventy six we are on a clear air standard buford involve a case in which the parties did not dispute the facts and it was questionable whether or not decision for a number of reasons closeness to the facts experience with sentencing a lot of the panoply of things that a district court judge does i think some of the confusion your honor and you raised  interesting point to me in trying to figure out what the standard view is because there are cases that say we're under noble and there are cases that we would say that were unclear my read of it is that the cases that say such as humfrey were preview for a case so i would i would suggest that buford controls and the other interesting thing about buford is and this is easier for me to understand is that the application of the facts to the law is reviewed for clear air and that's really what happens here at a sentencing judge belvin make a call that every single time a teller embezzles money that person should odell back in junior catches a ball and he's about to go out of bounds in the referee right there says he's in bounds and then the cameras up in the booth don't show clearly that the foot was on the line or out of bounds and we go with what the the face of that applying the law to the facts how do we justify the propriety of that of that enhancement even using a clear standard letter i would start with forwards i guess three and a half years substantial just jeopardy which says doesn't say actual jeopardy actual bankruptcy actually look at liquidation in my third and a half where it is not exhaustive zach court held in the young court held which are cited in my brief this is a not exhaustive list by definition of the things that a five dollars bond there was your honor that's what i was there would have been by that's correct you honor and so the reason why i'm focusing on those three and a half words your honor to answer your question or four words not exhaustive maybe that's one word the reason why i'm focusing on those is that by virtue of the statute the national credit union act the testimony from the national credit union witness was that by virtue of the statute seven hundred ninety d when a credit union such as shoreline is critically under capitalized with a net worth of less than two percent it requires action by the board true that's not a government bailout as we think of what happened during the last financial crisis i would not try and suggest that somebody threw a lot of money at this credit union  like they did at g m and but it is government action and given a non exhaustive list of examples and the fact that it doesn't require the hazmat doesn't require actual insolvency the credit union contemplates that if you're below this threshold which was established at sensing that the board has to do something and in this case they did an act they let it continue operating for one hundred eighty days during which time they did recover your honor on the fidelity bond and they were able to bring their network back up but substantially jeopardize as the judge the district judge found there was a period of time here when they really were in jeopardy incorrect one thing i learned from being involved in this case and you'll see some references from the defendant's own allocution that credit unions are different than banks and they see themselves as different back into jimmy stewart if you use the word bank with them they take umbrage at that and the reason why i make that point is that her job title was manager but the statute the national credit union and defines a manager as a c e o they just don't use that language because it doesn't fit with their image so everything flows from that she is not a bank teller she is the o of a standalone one branch credit union with at most a part time board that meets once a month and so if you picture the credit union on a daily basis who's in charge who's there looking over her shoulder there's no video cameras on the vault there's no dual control policy and those are important to string distinctions from the opry case the humphrey case cited defendant how that a bank teller who was subject to video recorded video recorded vault they found that to be key in finding that she didn't have discretion they are didn't abuse a position of trust because there's such little trust that they recorded what she was doing in the vault here there's nobody old camera system there is no requirement that somebody else count the money w it goes on for fifteen years despite the existence of an audit she had absolute control of credit and one other important fact i think to show the abuse a position of trust and the control and the lack of supervision is she gave cash no picture this she gave cash to the tellers on a at least weekly basis large amounts of cash to deposit into her family family's bank account that would raise a red flag of any other financial institution except where she had a little fiefdom and she was in complete control over you from the statements that the tellers made that they submitted that are in the record that they believe there are two they absolutely believed they had been trained by her they didn't recognize this as red flags and why is this important because any case that involves large amounts of cash you always have the issue of how to launder it and she was able to use her position of trust to launder up to use the employees there as her little puppets to launder all the money my defendants who make a lot of cash their biggest problem is the picture it always is the cash that's why because it exists that's why all these other how to wallow banking systems exist because there is a problem with cash she was able by virtue of her complete as mr davis correctly points out i took the position that sophisticated means should apply i did take that position but i focused on the crime and the judge the district judge fo on the cover up and i wasn't aware of irwin and may in some of the other cases cited in my brief that by structuring this circuit's precedent that by structuring deposits  through relatives accounts that is sufficient for use of sophisticated means and here she obviously pled guilty to a structuring count she structured to keep the deposits under ten thousand dollars and she used i obviously like a certain point that you made that you said the sophisticated means and the abuse a position of trust kind of go together and mr davis said that there weren't any fancy computer entries and there wasn't a cloud or anything like that but that's actually not what's in the record and if you look at the p s r it's very dense technical data that i don't want to bore you with but she used dormant accounts she used investments when the auditor showed up she said that certain money was deposited at their correspondent credit union and then when they left she would put it on deposit at the vault those were the investment she was making and then when the whenever there was first these substantial questions about where that money was she had the discretion to make investments in the form of jumbo c d s which you'll see in the sentencing transcript she claimed that the missing money was investments that she had made on behalf of the financial institutions so the fact that she was able to make investments to manipulate the financial system in the other tellers weren't doing general ledger reports to be given to the auditors the other tellers weren't manipulating dormant the counts the other tellers weren't doing these things so it's i do believe that the sophisticated coverup the structuring of the money and the length of time really makes this case different from some of the other cases that mr davis cites and it's very different from humphries in that case it was a bank teller who was monitored by a video system it's different from almost all of the all the other cases involving tellers because she's not a teller there's no one else there to look over her shoulder and see what she's doing  another important issue is this idea that mr davis started out that the real driving factor with the district judge's decision was the amount of money that was a large amount in a while and he was simply offended by that and hammer her with a long sentence and you'll see in the transcript that he makes a record about the actual factors cited in saying guidelines so for example on abuse of position of trust mr davis argued unfreeze to the district judge he cited it case in verse right to him and the judge specifically rejected it and he said we're not talking about a teller he made a factual finding that we're talking about a manager and he didn't rely on any sort of just alt view of trust he specifically said that as a manager of this credit union she was given certain discretion which is one of the points that the circus make clear is important including  completely directing the people under them and direct them where the monies are to be taken from and where they are put to now that's a shorthand way of the structuring of the monies through the employees it further help the district judge that she had a responsibility to give a discretion in how to manage the credit and that also played into her use of how to manipulate the financial systems in order to fool these authors for so long and obviously specifically distinguished the main case that the defendant relies on so in some i would say your honor that there is no clear here that is the standard that we're operating under i think the receiver's foot was in bounds in the district judge made that call and there's no video cameras to show that was wrong thank you thank you  i quickly like to address the standard the standard you don't disagree with buford but the district court found and you can't tell whether used all those criteria because the district court transactions and this is just a case so we can't really tell whether all these other things were included as to sound as i would like to address this the government brought in a witness went through no thirteen there are four factors in nov thirteen exactly right your honor because and the credit union and the credit union board both said to the public it will not fail because everyone knew all along there was a an insurance policy that was going to pay one point point one point two five million dollars which puts it into the category of well capitalized what does that go to what are you meant when you go i have to go out and pay a premium for the only body which is then paid in order to keep the banking facility go what what is your point my point is that the bank was never in jeopardy of being under capitalized because we they ought whether it isn't forcing them to buy the insurance but they did have the insurance everyone knew they had the insurance and the credit and the credit unions boards responsibility was to either take some at and he was not in the position of trust or that means  of law of the insurance companies able to involve the use of things not just leave your honor and that's the first reaction anyone has to insurance they might not pay off they're always looking for a way not to pay off in the cases that are cited by the government for instance zack there was some question as whether or not the insurance company would pay off there was never any question here she acknowledged her involvement in her guilt from the get go and even though she acknowledged it that that's one of the factors that the court that the insurance company could look at that h if you would it you're correct if you ignore the insurance the prospective insurance policy i think one point eight percent is exactly right which means that severely under capitalized which forces the board to liquidate or consolidate or take such other action such other action in the example is bail out what did the board do the board knew all the facts that we have they knew more and what did they do they did nothing government inaction isn't doing nothing that's like i'm allowed to appear today because the government didn't stop me from appearing and that some government action it's not government inaction to do nothing what the board said is we will leave the credit union alone for another hundred eighty days because they knew it was one point eight percent of capitalization they knew that there was one and a quarter million dollars in insurance coming in and it's far better for everyone to keep the credit union alive instead of taking any other action like a bailout or declared it in saberi may there in that period