United States of America v. Michael Lynn Tribble

*The Honorable John G. Heyburn II, United States District Judge for
the Western District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0082P (6th Cir.)
File Name: 00a0082p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
M ICHAEL LYNN TRIBBLE ,
Defendant-Appellant.
;>

1
No. 99-5116
Appeal from the United States District Court
for the Eastern District of Tennessee at Greeneville.
No. 98-00019—Thomas G. Hull, District Judge.
Submitted: February 3, 2000
Decided and Filed: March 8, 2000
Before: MERRITT and MOORE, Circuit Judges;
HEYBURN, District Judge.*

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2 United States v. Tribble No. 99-5116
_________________
COUNSEL
ON BRIEF: David L. Leonard, LEONARD & KERSHAW,
Greeneville, Tennessee, for Appellant. Neil Smith, UNITED
STATES ATTORNEY, Greeneville, Tennessee, for Appellee.
_________________
OPINION
_________________
MERRITT, Circuit Judge. This appeal arises from
defendant Tribble’s conviction, upon a guilty plea, for
misappropriation of postal funds under 18 U.S.C. § 1711.
Tribble was employed by the United States Postal Service as
a window clerk in Kingsport, Tennessee. He used his
position to embezzle approximately $42,000 during late 1996
and early 1997. At sentencing, Tribble was assessed a two-
point enhancement under United States Sentencing
Guidelines §3B1.3, which provides for such an enhancement
if the crime was facilitated by a “position of trust.” Tribble
now appeals the District Court’s decision that his position as
a postal window clerk was a position of trust. We review de
novo the District Court’s determination that Tribble occupied
a position of trust for the purpose of the Sentencing
Guidelines. See United States v. Ragland, 72 F.3d 500 (6th
Cir. 1996); United States v. Dixon, 66 F.3d 133 (6th Cir.
1995).
According to the facts in this case, Michael Lynn Tribble
was employed as a window clerk in the Kingsport, Tennessee,
post office from 1991 until 1997. Tribble was routinely
issued stamps and money orders as a function of his job. In
addition, Tribble had access to the IRT or Integrated Retail
Terminal, a computerized system in which all transactions
were to be logged. From September 1996 through February
1997, Tribble received nine checks marked to “Postmaster”
from business customers for resetting their postage meters.
Tribble accepted the cash and entered the transactions into the

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6 United States v. Tribble No. 99-5116
In the case before us, three factors support the
government’s contention that postal window clerks (as
opposed to postal employees in general) occupy a position of
trust. Postal window clerks have access to the IRT computer
system, they are issued a store of money orders, and they are
audited only infrequently. As outlined in the “Agreed Factual
Basis” (Joint Appendix 37), Tribble’s embezzlement scheme
could not have been accomplished without access to the IRT
computer system. While it appears that Tribble could not
have accomplished the scheme if he had been audited on a
more frequent basis, the actual content of the daily financial
reports he was required to submit and the rigorousness of his
supervision on a daily basis was not fully ascertainable from
the record. Therefore, Tribble’s actions could be construed to
fall within the language of the application note implicating
positions which make the commission or the concealment of
the offense easier. As we previously noted, however, that is
not the decisive issue.
We do not believe that this system of embezzlement is any
more advanced than one that would have been employed by
a typical bank teller with access to a bank’s computer system,
nor does the position require more trust than that reposed in
a bank teller or hotel clerk. A postal window clerk fills a
clerical position, one which does not require the type of trust
in the discretion of a fiduciary or manager as the application
notes indicate is required under § 3B1.3. As this Court has
previously noted, just because we trust a person to handle
another’s property in the course of their job does not mean
they occupy a “position of trust” for the purpose of § 3B1.3.
See Ragland, 72 F.3d at 502. Even though Tribble’s position
significantly aided him in the commission and concealment of
his offense, we do not believe that fact overrides the
inherently clerical nature of his position.
For the reasons outlined above, we REVERSE the decision
of the District Court enhancing Tribble’s sentence by two
points for his abuse of a position of trust under § 3B1.3 of the
Sentencing Guidelines.
No. 99-5116 United States v. Tribble 3
computer. He later voided the transactions and retained the
cash. Postal window clerks are audited only infrequently, but
they are required to submit a daily financial report. The
report is a printout of the transactions conducted using the
IRT. Because he voided the transactions, they did not appear
as cash received in his reports. Tribble was then able to issue
money orders to himself from the excess cash in his
possession, thus avoiding the problem of attempting to cash
the checks.
Under United States Sentencing Guideline § 3B1.3, “[i]f
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, increase by 2
levels.” The application notes explain that a position of trust
is:
characterized by managerial discretion (i.e. substantial
discretionary judgment that is ordinarily given
considerable deference). Persons holding such positions
ordinarily are subject to significantly less supervision
than employees whose responsibilities are primarily non-
discretionary in nature. For this enhancement to apply,
the position of trust must have contributed in some
significant way to facilitating the commission or
concealment of the offense (e.g., by making the detection
of the offense or the defendant’s responsibility for the
offense more difficult). This adjustment, for example,
would apply in the case of an embezzlement of a client’s
funds by an attorney serving as a guardian, a bank
executive’s fraudulent loan scheme, or the criminal
sexual abuse of a patient by a physician under the guise
of an examination. This adjustment would not apply in
the case of an ordinary bank teller or hotel clerk because
such positions are not characterized by the above-
described factors.
U.S.S.G. § 3B1.3, comment n.1 (emphasis added). The
application notes further provide that due to the special nature
of the United States mail, any postal worker who engages in

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4 United States v. Tribble No. 99-5116
the destruction or theft of the mail will be deemed to be in a
position of trust. This rather extensive discussion of the
application of this guideline was added by amendment in
1993.
Our Circuit has not specifically considered whether a postal
window clerk should be assessed the two-point enhancement
for position of trust. We have decided two cases with respect
to other types of employment which are illustrative. In United
States v. Ragland, 72 F.3d 500 (6th Cir. 1996), we examined
Sentencing Guideline § 3B1.3 and the application notes to
determine whether a bank customer service representative
occupied a “position of trust.” In making that determination,
the panel held that “[t]he element of professional or
managerial discretion is said to be the key.” See id. at 502.
The panel found that the bank customer service representative
did not occupy a position of trust because she executed her
embezzlement scheme in the same simple way that a bank
teller would have embezzled the money, and it noted that she
was not authorized to exercise any “meaningful discretion” in
her position given that her job duties differed from those of a
bank teller only in that she could open accounts for customers
and prepare certificates of deposit, which required the
signature of a supervisor. See id. at 501, 503.
In a previous case addressing § 3B1.3, a panel of this court
noted in dicta that it would have found an insurance company
employee (“cashier”), who drafted checks to be mailed to
creditors and reconciled the bank statements after the
canceled checks were returned, to be in a position of trust.
See United States v. Allison, 59 F.3d 43 (6th Cir. 1995). She
accomplished her scheme by altering the names on the checks
after they had been signed using the correction device on a
manual typewriter, thereby avoiding detection. Once the
checks were returned with the bank statements, she simply
removed her name and added the proper creditor’s name back
again. The panel emphasized the fact that the employee was
the last to handle the checks before they left and the first to
see them once they returned, noting that no one else could
have accomplished this particular scheme. See id. at 46.
No. 99-5116 United States v. Tribble 5
While this panel seemed to rely more on her lack of
supervision than on the level of discretion that a “cashier”
would have, the panel only reached this issue in dicta,
deciding the case on other grounds.
The government brings to our attention the several cases
from other Circuits which have held that postal window
clerks occupy a position of trust. See, e.g., United States v.
Carroll, 129 F.3d 117, 1997 WL 693587 (4th Cir. 1997)
(holding that a postal window clerk occupies a position of
trust); United States v. Bottroff, 124 F.3d 213, 1997 WL
577260 (9th Cir. 1997) (same); United States v. Milligan, 958
F.2d 345 (11th Cir. 1992) (same); see also United States v.
Melendez, 41 F.3d 797 (2d Cir. 1994) (citing Milligan as
supporting the holding that a postal worker who was one of a
small group of postal workers who had access to the
registered mail room key and who therefore had access to
large sums of money without the “tight accounting controls
that restrict a bank teller” occupied a position of trust). The
cases repeatedly emphasize that the daily audits of the typical
bank teller differ greatly from the audits performed only every
few months on postal window clerks. In addition, the cases
note that access to the IRT computer system and to stamps
and money orders helped elevate the position to one of trust.
We are not persuaded by the reasoning of those cases.
According to our own precedent, and to the application notes
in the Sentencing Guidelines themselves, the level of
discretion accorded an employee is to be the decisive factor
in determining whether his position was one that can be
characterized as a trust position. The cited cases have too
often emphasized, we believe erroneously, the supervision an
employee receives. The examples given in the application
notes (physician, attorney, and fiduciary) imply that the
inherent nature of the work itself should naturally convey a
substantial degree of discretion to the defendant concerning
how to properly administer the property of another or
otherwise act in their best interest.

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