Friday, July 08, 2011

Abuse-of-trust enhancement ok'd for fake bail bondsman

US v. Brack: Brack pled guilty to wire fraud and aggravated identity theft, after posing as a bail bondsman and pretending to assist an elderly man in posting bond for his granddaughter. Brack took the man's social security card, driver's licence and ATM card, opening up multiple lines of credit and purchasing several items; he later gave Brack cash amounting to $16,568 and the deeds to two properties as collateral for his granddaughter's bond. At Brack's sentencing, the district court applied an abuse-of-trust enhancement, based on her masquerade as a licensed bail bondsman. The Fourth Circuit affirmed.

Brack failed to object to the abuse-of-trust enhancement at sentencing, so the Fourth Circuit reviewed the district court's factual findings only for clear error. The Fourth Circuit discussed how the enhancement applies to imposters, so long as the "defendant provides sufficient indicia to the victim that the defendant legitimately holds a position of private or public trust." Brack argued that as a matter of law, bail bondsmen in North Carolina do not occupy a position of public or private trust, to which the Fourth Circuit responded that indeed, bail bondsmen are subject to a comprehensive system of regulation to obtain a license, their qualifications are spelled out statutorily, and they must meet residency, educational and training requirements - clearly positions of public trust that entail certain fiduciary duties to customers. The Fourth Circuit concluded that no clear error occurred in the imposition of the abuse-of-trust enhancement in Brack's case.

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