United States of America v. Elaine Cray Castro

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-1694
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UNITED STATES OF AMERICA
v.
ELAINE CRAY CASTRO,
Appellant
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Appeal from the United States District Court
For the District of New Jersey
D.C. No.: 00-cr-00361
District Judge: Honorable Dickinson R. Debevoise
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Submitted Under Third Circuit LAR 34.1(a) March 5, 2002
Before: SCIRICA, ROSENN, Circuit Judges, and WARD, District Judge.
(Filed March 8, 2002 )
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OPINION
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ROSENN, Circuit Judge.
Fund Securities Incorporated (FSI) was a broker/dealer of securities located in
Staten Island, New York. In mid-1993, it employed Elaine Cray Castro (Castro or
Defendant) as its secretary and bookkeeper. Castro maintained all of the corporation’s
financial accounts and records, and was responsible for maintaining a journal of cash and
checks received by FSI, and for the flow of funds into and out of FSI. An investigation in
1999 revealed that Castro had forged one hundred twenty-eight (128) checks aggregating
in excess of $2 million and deposited them in her personal account or in the account of
Tuscany Food Corp., a restaurant owned by her and her husband.
A three count information filed in the United States District Court for the
District of New Jersey charged Castro with: (1) knowingly transporting forged and altered
securities in interstate commerce, in violation of 18 U.S.C. 2314; (2) evading income
taxes by filing a false 1996 tax return, in violation of 26 U.S.C. 7201; and (3) filing a
false 1997 tax return, in violation of 26 U.S.C. 7201. Defendant pled guilty to Counts
One and Three pursuant to a plea agreement. The parties stipulated that, with respect to
Count One: (1) U.S.S.G. 2B1.1 was applicable and carried a base offense level of 4: (2)
the amount of loss was more than $800,000 but not more than $2.5 million; (3) the
offense involved more than minimal planning; and (4) Defendant abused a position of
private trust and used a special skill in a manner that significantly facilitated the
commission and concealment of the offense. The parties also stipulated that Counts One
and Three were not subject to grouping and that Defendant demonstrated timely
acceptance of responsibility at the time of the agreement and if that continued, she would
be entitled to a three level downward adjustment.
The District Court sentenced the Defendant to imprisonment for a concurrent term
of 41 months on the two counts to which she had pled guilty, to be followed by three
years of supervised release. Defendant timely appealed. We affirm.

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The sole issue on appeal is whether the District Court erred in enhancing the
Defendant’s sentence when it found that she occupied a position of trust. The
enhancement for breach of trust resulted in an increase of two levels pursuant to U.S.S.G.
3B1.3. Castro stipulated in the District Court that she occupied a position of trust.
Subsequently, she obtained new counsel who was permitted to object and argue this issue
at the time of sentencing. At sentencing, the District Court carefully and patiently
listened to the argument of counsel for the Defendant and even invited the Defendant
personally to speak in her own behalf. The Court found that the Palaces (owners of FSI)
"trusted the Defendant totally, treating her with a trust one would accord a family
member in giving her almost complete control of the daily operations of the business.
She was the sole bookkeeper employed by FSI and had great discretion in managing
customer accounts. She lulled the Palaces into the false sense of security enabling her to
steal immense sums of money. This was possible only because she held a position of
trust." The record supports these findings.
In United States v. Pardo, 25 F.3d 1187 (3d Cir. 1994), this Court had occasion to
consider controlling principles in determining whether a position constituted one of trust
for purposes of enhancement of sentence under U.S.S.G. 3B1.3. The court held that the
factors to be considered are: (1) whether the position allows the Defendant to commit a
difficult-to-detect wrong; (2) the degree of authority to which the position invests
independent vis- -vis the object of the wrongful act; and (3) whether there has been
reliance on the integrity of the person occupying the position. Id. at 1192.
A review of the record unequivocally supports the findings of the District Court,
and its conclusion that Castro occupied a position of trust in accordance with Pardo. The
record reveals that the position she filled allowed her to commit a difficult-to-detect
wrong because the Palaces relied fully on her integrity to control and maintain the books
and cash flow. The record demonstrates that Castro also meets the remaining two Pardo
factors. She, therefore, occupied a position of trust. Regrettably, she abused that position
"in a way that significantly facilitated [her] crime." United States v. Craddock, 993 F.2d
338, 340 (3d Cir. 1993).
Accordingly, the judgment of conviction and sentence is affirmed.
TO THE CLERK:
Please file the foregoing opinion.
/S/ Max Rosenn
Circuit Judg

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