USA v. Mark Steven Szekely

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10502
Non-Argument Calendar
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D.C. Docket No. 3:14-cr-00034-HES-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK STEVEN SZEKELY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(November 24, 2015)
Before TJOFLAT, JORDAN and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Mark Steven Szekely, in appealing his concurrent prison sentences, 108
months, for committing eight violations of the wire fraud statute, 18 U.S.C. § 1343,
argues that the district court erred in enhancing his base offense level pursuant to
U.S.S.G. § 3B1.3 by two levels for abusing a position of trust.1 Specifically, he
argues that in identifying himself as Jon Shapiro, a lawyer, when communicating
with his victims via email (and inducing them to send him money), he was not
occupying a position of trust vis-à-vis his victims. He was simply using the lawyer
identity as part of his fraudulent scheme. Assuming, though, that the court did not
err in finding that he had abused a position of trust vis-à-vis his victims, he argues
that the court failed to find as fact that Szekely’s abuse of his position of trust
significantly facilitated the commission of the wire fraud scheme. We find no
merit in Szekely’s arguments and accordingly affirm.
I.
We review for clear error a district court’s factual determination that a
defendant abused a position of public trust, but we review de novo the court’s legal
conclusion that the defendant’s conduct justified the abuse-of-trust enhancement.
United States v. Garrison, 133 F.3d 831, 837 (11th Cir. 1998). The government
had the burden of proving the applicability of sections that would enhance the
offense level. See United States v. Bailey, 961 F.2d 180, 181 (11th Cir. 1992).
1 The sentence range for Szekely’s sentences was 87 to 108 months’ imprisonment. As
indicated, the district court sentenced him to the high end of the range.
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The government was required to establish by a preponderance of the evidence that
Szekely abused a position of public trust. See United States v. Kummer, 89 F.3d
1536, 1545 (11th Cir. 1996) (explaining that “the standard for a sentencing court
on a disputed fact involved in sentencing is a preponderance of the evidence”).
Section 3B1.3 provides: “If 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 [the offense level] by 2
levels.” U.S.S.G. § 3B1.3. The commentary to § 3B1.3 provides that “[p]ublic or
private trust” refers to a position of public or private trust characterized by
professional or managerial discretion (i.e. substantial discretionary judgment that is
ordinarily given considerable deference).” Id., cmt. n.1.
This adjustment also applies in a case in which the defendant provides
sufficient indicia to the victim that the defendant legitimately holds a
position of private or public trust when, in fact, the defendant does not. For
example, the adjustment applies in the case of a defendant who (A)
perpetrates a financial fraud by leading an investor to believe the defendant
is a legitimate investment broker; or (B) perpetrates a fraud by representing
falsely to a patient or employer that the defendant is a licensed physician. In
making the misrepresentation, the defendant assumes a position of trust,
relative to the victim, that provides the defendant with the same opportunity
to commit a difficult-to-detect crime that the defendant would have had if
the position were held legitimately.
Id., cmt. n.3. Within the fraud context, we have explained that § 3B1.3 applies
where the defendant is in a fiduciary, or other personal trust, relationship to the
victim of the fraud, and the defendant takes advantage of the relationship to
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perpetrate or conceal the offense. United States v. Ghertler, 605 F.3d 1256, 1264
(11th Cir. 2010).
In Ghertler, we stated that “[t]he Commission has determined that,
particularly from the perspective of the crime victim, an imposter who falsely
assumes and takes advantage of a position of trust is as culpable and deserving of
increased punishment as is a defendant who abuses an actual position of trust.”
Ghertler, 605 F.3d at 1265; U.S.S.G. § 3B1.3. For example in Ghertler, we noted,
“[w]hether an individual is actually a stock broker, or is just pretending to be
one, is the same for applying the abuse-of-trust enhancement. This is
because it makes no difference from the victim's perspective. In either case,
the defendant actually enters into a relationship of trust with the victim, who
in turn grants the defendant discretion to act over his or her affairs.”
Ghertler, 605 F.3d at 1265.
The defendant in Ghertler telephoned a series of companies, identified
himself as a high-ranking company official, claimed he needed a quick cash
transfer and provided instructions on how to transfer the money to him. Id. at
1260. We decided the district court erred in applying the abuse of trust
enhancement to Ghertler because there was no relationship of trust between the
defendant and his victims. Id. at 1266–67. We found that the defendant did not
have a lengthy relationship with his victims or commit difficult-to-detect frauds
over time with minimal oversight from superiors. Id. In fact, the company’s
suspicions were raised quickly because the frauds were so overt. Id.
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Particularly regarding attorneys, one’s status as an attorney does not
necessarily mean he or she has abused a position of trust. United States v. Morris.
286 F.3d 1291, 1297 (11th Cir. 2002). In Morris, there were insufficient facts to
establish that a bona fide relationship of trust existed between the defendant and
the investors. Id. at 1298–99.
The district court did not err in applying the § 3B1.3 two-level enhancement.
Szekely was in a trust relationship with his victims, and he abused that relationship
to commit the offense conduct. When posing as fictitious attorneys or other legal
workers, he led his victims to believe they were in an attorney-client relationship,
unlike in Morris. Id. In contrast to Ghertler, Szekely’s victims provided him
professional discretion to do what was necessary to handle their legal affairs.
Ghertler, 605 F.3d at 1266–67. In his fictitious attorney role, he provided legal
advice, treated his victims as clients and accepted their retainers and other
payments. Also, his relationships with his victims lasted for years, while
Ghertler’s did not. Id.
II.
Szekely’s fall back argument—that the district court failed to find that his
abuse of trust significantly facilitated the commission of his offenses—is presented
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for the first time on appeal.2 We review claims of error raised for the first time on
appeal under the plain error standard to avoid manifest injustice. United States v.
Harness, 180 F.3d 1232, 1234 (11th Cir.1999). The test for plain error requires
error, that is plain, and that affects the appellant’s substantial rights. Id.
To determine whether the defendant abused the position of trust in a way
that significantly facilitated the commission of the offense, the court should inquire
as to whether the defendant used any special knowledge provided by his position
of trust to facilitate the offense. United States v. Brenson, 104 F.3d 1267, 1287
(11th Cir. 1997). There must be a nexus between the offense of conviction and the
abuse of the position of trust such that the defendant uses the “position of trust to
give him an advantage in the commission . . . of the offense.” United States v.
Barakat, 130 F.3d 1448, 1455–1456 (11th Cir. 1997). In Barakat, we reversed the
§ 3B1.3 enhancement because the defendant’s status as the head of the Broward
County Housing Authority did not give him an advantage when he committed
personal tax evasion, as the crime of tax evasion was neutral as to the method by
which the defendant obtained the income. Id. In United States v. Long, we held
2 After the district court pronounced sentence, it said: “The Court having pronounced
sentence, does counsel for the government or the defendant have any objections to the sentence
or the manner in which the Court has pronounced sentence other than what has been previously
stated?” Doc. 74 at 203. Defense counsel stated that her only objections were those previously
indicated, which, with respect to § 3B1.3, was that the government failed to establish the
application of the enhancement.
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that even if the defendant had discretion as a food service foreman, he did not
abuse the specific discretion given to him in that position to bring drugs into the
prison, and thus the enhancement did not apply. United States v. Long, 122 F.3d
1360, 1366 (11th Cir. 1997).
In communicating with his victims, Szekely acted as if he were an attorney,
in a position of trust. Some victims actually believed they were in an attorney-
client relationship with Szekely, which provided him with an opportunity to
provide advice and ask for payment. It was obvious to the court that Szekely’s use
of the lawyer identity facilitated his execution of his fraudulent scheme and the
commission of wire fraud---the identity was indispensable to the scheme’s success.
Its finding that this was so was implicit in the court’s decision to sentence Szekely
at the top of the Guidelines sentence range.
AFFIRMED.
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