United States v. Friedberg, No. 08-3763-cr (2d Cir. March 2, 2009) (Pooler, Katzmann, CJJ, Preska, DJ)
Daniel Friedberg was Grand Secretary of an Odd Fellows lodge for eighteen years. During that time, he embezzled nearly $600,000 of the organization’s funds. He also failed to pay tax on the money, and ultimately pled guilty to tax evasion. At sentencing, over his objection, the court imposed a two-level enhancement for abuse of trust, over his objection.
The circuit affirmed. Friedberg conceded that he abused a position of trust with respect to the Odd Fellows, but argued that he did not occupy a position of trust with respect to the government, which was the primary victim of the tax evasion. But the circuit pointed out that the commentary to the abuse-of-trust guideline requires consideration the relevant conduct, not just the elements and acts cited in the count of conviction.
The embezzlement was clearly relevant conduct to the tax evasion.
Friedberg abused his position to enrich himself and avoid paying taxes, thus his employer was also a victim of the offense.