74 F.Supp.3d 947
UNITED STATES of America, Plaintiff
v.
Anthony BARTLESON, Defendant.
No. CR 14–3022–MWB.
United States District Court, N.D. Iowa, Central Division.
Signed Feb. 10, 2015.
Anthony Morfitt, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.
Todd Michael Lantz, Weinhardt & Logan, PC, Des Moines, IA, for Defendant.
MEMORANDUM OPINION AND ORDER REGARDING ABUSE–OF–TRUST ENHANCEMENT
MARK W. BENNETT, District Judge.
| TABLE OF CONTENTS |
|---|
| I. | INTRODUCTION | 950 |
| II. | FACTUAL BACKGROUND | 955 |
| A. | Undisputed Facts | 955 |
| B. | Disputed Facts | 956 |
| C. | Admissibility of the Department of Labor Report | 958 |
| 1. | Standard for Admissibility of Evidence at Sentencing | 959 |
| 2. | Case Law on “Sufficient Indicia of Reliability” | 959 |
| 3. | DOL Report has “Sufficient Indicia of Reliability” | 962 |
| III. | DISCUSSION | 963 |
| A. | Standard for Abuse–of–Trust Enhancement | 963 |
| B. | Parties' Arguments as to Abuse–of–Trust Enhancement | 964 |
| C. | Analysis Regarding Abuse–of–Trust Enhancement | 966 |
| 1. | Bartleson Occupied a Position of Private Trust | 966 |
| 2. | Bartleson's Position Facilitated the Commission and Concealment of the Embezzlement | 970 |
| 3. | Enhancement Would Not Cause Double Counting | 973 |
| 4. | Application of Note 5 of the Sentencing Guidelines under U.S.S.G. § 3B1.3 | 975 |
| a. | First Clause of Note 5 | 976 |
| b. | Second Clause of Note 5 | 979 |
| D. | Restitution | 983 |
| 1. | Restitution Should Include Lost Investment Earnings and Tax Liabilities | 984 |
| 2. | Payment Schedule for Restitution | 988 |
| IV. | CONCLUSION | 990 |
| V. | APPENDIX | 991 |
I. INTRODUCTION
In this criminal sentencing of a corporate vice president, who embezzled money from thirteen employees' retirement accounts, one of the fighting issues is whether he abused a position of trust. An insightful philosophical work entitled Trust and Antitrust focuses on the risks of bestowing trust upon another.1 The author, Annette Baier, is a moral philosopher and an eminent scholar on the phenomenon of “trust.”2 According to Baier, “Trust ...
