Sussex College of Technology was a one-man operation run out of aprivate home where mail order degrees could be obtained at all levelsin all fields, with no study required. The "nomination" for the NobelPrize came from Sussex General Hospital, whose address was a mail-drop; there was no hospital facility. Caplinger presented evidence thathe held a valid medical degree from Autonomous University of SantoDomingo. His witnesses testified that a medical degree could beobtained from this institution by presenting medical degrees earnedoutside the Dominican Republic, completing several medical courses,and passing a competency exam. The registrar of Autonomous Uni-versity testified that Caplinger had met these requirements.) 3UNITEDSTATESv. CAPLINGER
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As part of his effort to persuade Weekly and Kampetis to investwith him, Caplinger presented them with what were purportedly accu-rate financial statements and records for his corporation, World Medi-cal Services. The documents showed that the corporation had a networth of $8,799,500. According to the records, World Medical Ser-vices had purchased a large supply of ImmuStim, and Caplinger hadalready solicited and received orders for its resale. The corporaterecords did reflect, however, that Caplinger’s operations had earnedprofits of only $132,000 in ten years. (According to the government’sevidence at trial, Caplinger had provided Weekly and Kampetis withstatements about the value of his corporation that were materiallyfalse.) After reviewing Caplinger’s credentials, assessing the financialdata that Caplinger provided about World Medical Services, and con-sidering Caplinger’s plan to market ImmuStim, Weekly and Kampetisdecided that "the investors [they] represented and their funds wouldhave a chance to really profit substantially" by putting money intoCaplinger’s venture. Weekly and Kampetis began sending money toCaplinger in the spring of 1995 and continued to do so for the nexttwo years. Weekly and Caplinger did not inform investors in theirDiamond Group partnership that substantial sums of partnershipmoney (about $1.6 million in all) were being invested in Caplinger’sventure. As Weekly and Kampetis continued to send more and moremoney to Caplinger, they decided that they needed "to protect theposition of the investors in the United States." In the fall of 1995Weekly and Kampetis incorporated Immuno Pharmaceuticals, Inc.(IPI) in the United States and persuaded Caplinger to transfer allassets of World Medical Services to IPI. Weekly, Kampetis, andCaplinger were the primary shareholders in IPI, but they sought addi-tional investors. Weekly and Kampetis attempted to sell shares of IPIto large institutional investors, such as Shearson Lehman, but nonewere interested. They were, however, able to sell shares to individualinvestors. Weekly and Kampetis provided potential investors withsolicitation materials, including brochures and a video, describingCaplinger’s clinic, the ImmuStim marketing project, and ImmuStim’ssuccess rates on patients at Caplinger’s clinic. (The government didnot attempt to prove at trial that ImmuStim is ineffective.) Weeklytold potential investors that investment in Caplinger’s ImmuStim mar-keting venture would produce lucrative returns. Approximately fifteen4UNITEDSTATESv. CAPLINGER
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investors paid a total of $230,000 to buy shares of IPI stock. Thesemonies were wired to Caplinger. Several IPI investors and potential investors, including the follow-ing four, testified for the government at trial. Jane Henderson testifiedthat Weekly contacted her about investing in IPI. Weekly sent her andher husband a brochure about IPI and an article written by Caplingerin Spanish. The Hendersons were told that "with a little more invest-ment . . . ImmuStim could be marketed worldwide." They invested$30,000 in IPI. Mrs. Henderson testified that she spoke withCaplinger on one occasion to seek advice about potential cancer treat-ment for her grandmother. LaGena Green, a North Carolina actresswho is HIV positive, testified that she was approached by Weekly andasked whether she would be willing to be a spokesperson for Immu-Stim in exchange for free treatment. Green was flown on two occa-sions to the Dominican Republic where she was treated at Caplinger’sclinic. Despite intense pressure from Weekly and Kampetis to serveas ImmuStim’s spokesperson, Green declined. She did not invest inImmuStim and did not pay for the treatment she received atCaplinger’s clinic. Barry Burke, a childhood friend of Weekly,invested in IPI after Weekly talked up Caplinger’s project and gaveBurke brochures about IPI that touted the successes of ImmuStim.Vincent Khau, a potential investor, testified that Weekly and Kampe-tis flew him to the Dominican Republic to meet with Caplinger.While there, Khau was taken to Caplinger’s resort condominium andshown around Caplinger’s offices. He was given a sample vial ofImmuStim to take home and show to his investment partner. Khaubacked out of investing over $1 million in IPI after discovering thatCaplinger had been convicted several years earlier for practicing med-icine without a license in North Carolina. Weekly and Kampetis sent $1,800,000 to Caplinger, either fromDiamond Group funds or the sale of IPI shares. All of the funds werewired from the United States to the Dominican Republic. Six specifictransfers to Caplinger were the basis for the wire fraud counts againsthim: $49,000 on May 4, 1995; $25,000 on October 3, 1995; $50,000on November 29, 1995; $825,000 on December 15, 1995; $70,000 onApril 9, 1996; and $40,000 on September 20, 1996. The November1995 transfer of $50,000 and the December 1995 transfer of $825,000also formed the basis for the two money laundering counts. Caplinger5UNITEDSTATESv. CAPLINGER
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told Weekly and Kampetis that the $50,000 was required to keepCaplinger’s clinic operation going. Caplinger said that the $825,000was needed to pay for a substantial order of ImmuStim. He madeconstant requests to Weekly and Kampetis for money during the twoyears they were involved with him. Caplinger represented that fundswere needed to pay staff, to pay expenses for the clinic, to buy medi-cal supplies, and to maintain a corporate airplane. Caplinger told FBIAgent Julia Mueller that he received almost $2 million from Weeklyand Kampetis, which he used to make payments for ImmuStim sup-plies, to pay legal bills, to maintain the airplane, and to keep the clinicrunning. According to Caplinger, he did not know the individualsources of the money sent by Weekly and Kampetis, but he knew thatit came from investors solicited by them. Weekly and Kampetis learned about Caplinger’s conviction for theillegal practice of medicine in the fall of 1996. The two men neverthe-less continued their relationship with Caplinger. By January 1997,however, Weekly and Kampetis could no longer raise funds forCaplinger’s speculative venture. By the spring of that year they werefending off calls from concerned investors demanding interest pay-ments and information about their investments. Weekly and Kampetisbecame skeptical about Caplinger and his ImmuStim project becausethe clinic was not generating revenues, and they appeared to be fund-ing the entire operation. By the spring of 1997 two years had passed,and Weekly and Kampetis had not received any return on their invest-ment with Caplinger. At that point, they ended their relationship withCaplinger and sought legal counsel. In May 1997 Weekly begancooperating with the FBI. Both Weekly and Kampetis were chargedwith fraud and entered plea agreements. The government promised torecommend reduced sentences in exchange for their cooperation andtestimony against Caplinger. At trial, following the denial of his motion for acquittal, Caplingerwas convicted by the jury on all eight counts. The Presentence Report(PSR), adopted by the district court, used the money launderingguidelines, and not the ones on fraud, to calculate Caplinger’s offenselevel. The entire $1,800,000 received by Caplinger by wire wastreated as a loss under the money laundering guidelines in calculatingthe offense level. Caplinger objected both to the use of the moneylaundering guidelines and the treatment of the entire $1,800,000 as6UNITEDSTATESv. CAPLINGER
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the loss under those guidelines. FBI Agent Mueller testified at sen-tencing that all of the funds wired to Caplinger were used to promotehis fraudulent scheme. The district court concluded that Caplinger’s"continuing enterprise" was supported by all of the funds sent to himby Weekly and Kampetis and that $1,800,000 thus represented theappropriate loss under the money laundering guidelines. The districtcourt also adopted, over Caplinger’s objection, the PSR’s recommen-dation for a two-point enhancement for abuse of trust under U.S.S.G.§ 3B1.3. The enhancement was based on Caplinger’s representation,which was passed on to potential investors, that he was a physician.On October 30, 2001, the district court sentenced Caplinger to 168months imprisonment and three years supervised release; Caplingerwas also ordered to pay monetary penalties of $1,059,000 in restitu-tion and $450 in special assessments. Caplinger appeals his interna-tional money laundering convictions and his sentence. He does notappeal his wire fraud convictions. II.Caplinger first argues that the evidence was insufficient to provethe intent element of the two international money laundering charges.In reviewing a sufficiency of the evidence challenge to a jury verdict,we decide whether there is "substantial evidence, taking the viewmost favorable to the Government, to support [the verdict]." Glasserv. United States, 315 U.S. 60, 80 (1942). The international moneylaundering counts were based on two wire transfers from Weekly andKampetis to Caplinger, the first in November 1995 for $50,000 andthe second in December 1995 for $825,000. To prove that Caplingerengaged in international money laundering, the government had toshow that he caused funds to be transferred "from a place in theUnited States to or through a place outside . . . with the intent to pro-mote the carrying on of specified unlawful activity." 18 U.S.C.§ 1956(a)(2)(A). See also id. § 1956(c)(7)(A) (defining "specifiedunlawful activity" to include wire fraud). Caplinger contends that thegovernment failed to prove that he arranged to have the funds trans-ferred "with the intent to promote" his unlawful activity, namely, hisbogus ImmuStim marketing scheme that was funded by wire fraud.As Caplinger recognizes in his brief, we have held under the domesticmoney laundering statute, 18 U.S.C. § 1956(a)(1)(A)(i) — a statutecontaining the same "intent to promote" language — that intent to7UNITEDSTATESv. CAPLINGER
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promote is proven with evidence that the defendant used proceedsfrom an unlawful scheme to keep the scheme going. See United Statesv. Stewart, 256 F.3d 231, 249-50 (4th Cir. 2001); United States v. Wil-kinson, 137 F.3d 214, 221 (4th Cir. 1998). Caplinger’s specific argu-ment is that the government failed to prove use because it did notintroduce any bank records or other documents "to show what wasactually done with the money once it [was] transferred." Appellant’sBr. at 23. In construing the companion domestic money launderingstatute, however, we have held that the use of unlawful proceeds tofurther an unlawful scheme can be proved without records document-ing specific expenditures. Stewart, 256 F.3d at 249. Rather, use canbe proved by other competent evidence, including circumstantial evi-dence, that the defendant applied unlawful proceeds to promote andperpetuate his scheme. Id.The government contends there was sufficient evidence to allowthe jury to find that Caplinger used the $50,000 and the $825,000transfers to keep his illegal scheme going. We agree. The govern-ment’s evidence established that Caplinger told Weekly and Kampetisthat he needed the $50,000 to keep the clinic in operation. Caplingertold Weekly that he needed the $825,000 to purchase "a large quantityof ImmuStim." Caplinger made constant pleas to Weekly and Kampe-tis for money to cover clinic expenses, including rent and salaries,medical supplies, and the maintenance of a corporate plane. Caplingerwas in obvious need of funds: in the ten years before Weekly andKampetis arrived on the scene, Caplinger’s operation produced totalprofits of only $132,000; and Caplinger needed the clinic and all ofits trappings to attract investors and to assure them that the ImmuStimmarketing project was a sound investment. Following the transfersfrom Weekly and Kampetis, Caplinger was able to keep the clinic inoperation and maintain the corporate airplane, two indications that themoney went exactly where Caplinger said it would go. Moreover,Caplinger himself told the FBI that he used the wired funds to buyImmuStim, to make repairs on the airplane, and to "keep the clinicgoing." In sum, there was substantial evidence to support the jury’sfinding that Caplinger intended to promote his fraudulent ImmuStimmarketing scheme through use of the transferred funds. See Stewart,256 F.3d at 250. Caplinger’s convictions on the two counts of interna-tional money laundering are therefore affirmed. 8UNITEDSTATESv. CAPLINGER
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III.We turn next to Caplinger’s challenges to his sentence. We reviewthe district court’s factual findings at sentencing for clear error, andwe review its legal interpretation of the Sentencing Guidelines denovo. United States v. Dawkins, 202 F.3d 711, 714 (4th Cir. 2000).A.We start with Caplinger’s argument that because this is essentiallya fraud case, the district court erred in referring to the money launder-ing guidelines instead of just the fraud guidelines. Guidelines§ 1B1.2(a), however, instructed the district court to refer to the Statu-tory Index (Appendix A) to identify the guidelines for the statutes ofconviction. U.S.S.G. § 1B1.2(a) (2000). The index, in turn, directedthe court to the money laundering guidelines, U.S.S.G. § 2S1.1(2000), for Caplinger’s convictions for money laundering under 18U.S.C. § 1956, and to the fraud guidelines, U.S.S.G. § 2F1.1 (2000),for his convictions for wire fraud under 18 U.S.C. § 1343. The districtcourt therefore did not err in referring to the money laundering guide-lines. We will consider next in part III.B whether the court properlyapplied those guidelines. B.Caplinger argues that the district court erred by grouping the wirefraud and money laundering counts under U.S.S.G. § 3D1.2(d) andapplying the higher offense level for money laundering pursuant toU.S.S.G. § 3D1.3(b). Section 3D1.2(d) provides for grouping of all"counts involving substantially the same harm . . . [w]hen the offenselevel is determined largely on the total amount of the harm or loss."Grouping under § 3D1.2(d) results in the calculation of an offenselevel that is based on the aggregated loss. See U.S.S.G. § 3D.1.3(b)(offense level for counts grouped under § 3D1.2(d) corresponds to theaggregated quantity). At the time of Caplinger’s sentencing, the lawin this circuit was that offenses for fraud and money laundering couldbe grouped together under § 3D1.2(d) when they are "‘closelyrelated.’" United States v. Bolden, 325 F.3d 471, 496 (4th Cir. 2003)(quoting United States v. Walker, 112 F.3d 163, 167 (4th Cir. 1997)).See also United States v. Porter, 909 F.2d 789, 792-93 (4th Cir.9UNITEDSTATESv. CAPLINGER
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1990); cf. United States v. Mullens, 65 F.3d 1560, 1564-65 (11th Cir.1995) (grouping mail fraud and laundering offenses under§ 3D1.2(d)). In Walker, for example, the amounts specified in themoney laundering counts amounted only to $5051.01, but the districtcourt nevertheless looked to the amount of money involved in themail fraud counts ($850,913.59) and used that amount to determinethe offense level. Walker, 112 F.3d at 166-67. We held that thisaggregation was permissible because "the facts of the case establishthat the mail fraud and money laundering crimes were interrelated,"specifically, the "money laundering was part of [the] fraudulentscheme." Id., 112 F.2d at 167. See also Bolden, 325 F.3d at 496 (hold-ing that grouping was appropriate when the "money laundering andfraud activities were part of a continuous, common scheme todefraud"); Mullens, 65 F.3d at 1565 ("[T]he amount of money col-lected through fraud was co-extensive with the sums involved in thecharged and uncharged money laundering counts and was, therefore,the total amount of funds involved in the ponzi."). On the facts ofCaplinger’s case, the district court did not err in determining that themoney laundering and wire fraud activities were part of a continuous,common scheme to defraud. The court was therefore correct in group-ing the wire fraud and money laundering counts and in using themoney laundering guidelines to set Caplinger’s offense level. We note that Amendment 634 to the Guidelines, which went intoeffect just two days after Caplinger’s sentencing, explicitly providesfor grouping of money laundering counts and counts for the underly-ing offense under § 3D1.2(c), rather than § 3D1.2(d) as our court hadpreviously allowed. U.S.S.G. Supp. to App. C, Amend. 634 (effectiveNov. 1, 2001). (The Amendment completely changes the way inwhich the offense level for money laundering is calculated. SeeU.S.S.G. § 2S1.1(a) (2001). Rather than setting base offense levels of23 or 20 for money laundering like the earlier guideline, the amendedguideline sets the base offense level at either the offense level for theunderlying offense from which the laundered funds were derived oreight plus the number of offense levels from the table in § 2B1.1(Theft, Property Destruction, and Fraud) corresponding to the valueof the laundered funds. See id.) Amendment 634 does not apply retro-actively, however, and thus Caplinger does not benefit from it. SeeUnited States v. King, 280 F.3d 886, 891 (8th Cir. 2002); United10UNITEDSTATESv. CAPLINGER
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States v. McIntosh, 280 F.3d 479, 485 (5th Cir. 2002); United Statesv. Sabbeth, 277 F.3d 94, 99 (2d Cir. 2002). Caplinger further argues that the district court erred in setting theloss under the money laundering guidelines at $1,800,000, the totalof the funds wired to Caplinger by Weekly and Kampetis. Caplingersays that the money laundering loss should have been limited to$875,000, the loss stemming from the two money laundering counts.At the time of Caplinger’s sentencing, the money laundering guide-lines for a conviction under 18 U.S.C. § 1956 established a baseoffense level of 23. U.S.S.G. § 2S1.1 (2000). If the money launderedwas between $600,000 and $1,000,000, an additional four points wereadded, bringing the offense level to 27. If the money laundered wasin excess of $1,000,000, five points were added, bringing the offenselevel to 28. Id. Thus, if the loss amount had been limited to the fundsspecified in the money laundering counts under 18 U.S.C. § 1956,Caplinger would have faced an offense level of 27. On the other hand,if (as the district court determined) the loss amount was all of themoney ($1,800,000) wired to Caplinger, he faced an offense level of28. According to Caplinger, the district court erred in setting the lossfigure at $1,800,000 (yielding level 28) because the governmentfailed to prove that he used all of the wired funds to promote his fraudscheme. At trial the government presented evidence that Caplingerconstantly requested money from Weekly and Kampetis — requeststhat far exceeded the $875,000 specified in the money launderingcounts — to pay for clinic expenses, including rent, staff salaries, andmedical supplies, and for other expenses such as maintenance of acorporate airplane. At sentencing FBI Agent Mueller testified thatCaplinger told her that the wired money went to pay expenses, includ-ing salaries, research, rent, and marketing, and to buy large quantitiesof ImmuStim. In light of this evidence, the district court did notclearly err in finding that "[t]he continuing enterprise was supportedby the money when Mr. Caplinger got the money" and that all of thefunds ($1,800,000) Caplinger got from Weekly and Kampetis wereused to promote Caplinger’s ongoing fraudulent activities. The lossfigure under the money laundering guidelines was therefore properlyfixed at $1,800,000. C.Finally, Caplinger argues that the district court erred in assessinga two-level enhancement under U.S.S.G. § 3B1.3 for abuse of a posi-11UNITEDSTATESv. CAPLINGER
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tion of trust. A defendant gets the two-level increase under § 3B1.3if the district court "determines that [he] abused a position of trust andthat abuse significantly contributed to the commission or concealmentof the crime." United States v. Akinkoye, 185 F.3d 192, 203 (4th Cir.1999). See also U.S.S.G. § 3B1.3 (2000). We review for clear errorthe district court’s factual findings that support the enhancement forabuse of a position of trust. Dawkins, 202 F.3d at 714; United Statesv. Helton, 953 F.2d 867, 869 (4th Cir. 1992) (concluding that determi-nations under both parts of § 3B1.3, abuse of position of trust and useof a special skill, should be reviewed under the same standard). Ofcourse, to the extent the district court undertakes a legal interpretationof any guideline, including § 3B1.3, our review is de novo. UnitedStates v. Gormley, 201 F.3d 290, 296 (4th Cir. 2000) (concluding thatthe district court "erred in its interpretation of the guidelines by con-cluding that tax preparation as practiced by [the defendant] is a spe-cial skill" under U.S.S.G. § 3B1.3). The basic question is whether Caplinger, by posing as an accom-plished physician in order to influence potential investors, abused aposition of trust with respect to the victims of his fraud scheme withinthe meaning of Guidelines § 3B1.3. The government argued at sen-tencing that Caplinger’s use of his position as a "physician" signifi-cantly facilitated the commission of the fraud. The government pre-sented evidence that investors were given (false) information aboutCaplinger’s medical background and that this background was toutedas a reason for the likely success of the ImmuStim venture. Based onthis evidence, the district court determined "that it was largely by vir-tue of the false identification of Mr. Caplinger having these importantsounding degrees and important experience, all of which was con-veyed to the investors, that the scheme was able to work and that cre-ated the position of trust." The district court did not clearly err in itsfactual finding that Caplinger’s asserted position as a physician facili-tated the fraud. There is still the question, however, of whether thedistrict court erred in concluding that Caplinger’s use of his assertedposition as a physician amounted to an "abuse of position of trust" asthat phrase is used in Guidelines § 3B1.3. This ultimate determinationinvolved a legal interpretation of § 3B1.3, and we review that inter-pretation de novo. See Gormley, 201 F.3d at 295-96 (reviewing denovo the district court’s interpretation of "special skill" as used in§ 3B1.3). 12UNITEDSTATESv. CAPLINGER
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We recognize, as do other courts, that "[d]etermining what consti-tutes a position of trust for the purposes of § 3B1.3 is not a simpletask." United States v. Morris, 286 F.3d 1291, 1296 (11th Cir. 2002)(quoting United States v. Iannone, 184 F.3d 214, 222 (3rd Cir. 1999)).The commentary to § 3B1.3 provides some guidance for decidingwhether a defendant occupied a position of trust. "‘Public or privatetrust’ refers to a position of public or private trust characterized byprofessional or managerial discretion (i.e., substantial discretionaryjudgment that is ordinarily given considerable deference)." U.S.S.G.§ 3B1.3 comment. (n.1) (2000). See also Bolden, 325 F.3d at 504.The commentary also provides specific examples of when the abuseof a position of trust justifies the enhancement: "an embezzlement ofa client’s funds by an attorney as a guardian, a bank executive’sfraudulent loan scheme, or the criminal sexual abuse of a patient bya physician under the guise of an examination." U.S.S.G. § 3B1.3,comment. (n.1) (2000). Finally, the commentary explains that the "ad-justment . . . applies in a case in which the defendant provides suffi-cient indicia to the victim that the defendant legitimately holds aposition of private or public trust when, in fact, the defendant doesnot." U.S.S.G. § 3B1.3, comment. (n.2) (2000). We have emphasized that the "position of trust" inquiry must focuson the relationship between the defendant and the victim from theperspective of the victim. United States v. Gordon, 61 F.3d 263, 269(4th Cir. 1995). "There must be a trust relationship between [thedefendant] and his victim for the enhancement to apply." UnitedStates v. Moore, 29 F.3d 175, 180 (4th Cir. 1994) (internal quotationmarks and citation omitted) (alteration in original). "In the case of animposter, it is not merely the defendant’s misrepresentation that justi-fies the § 3B1.3 enhancement. In every case of fraud, the defendantwill have [gained the] confidence and trust [of] the victim. But fraudalone does not justify the enhancement." United States v. Bollin, 264F.3d 391, 415 (4th Cir. 2001). See also Mullens, 65 F.3d at 1567. Asentencing court must "carefully distinguish between those arms-length commercial relationships where trust is created by the defen-dant’s personality or the victim’s credulity," Bollin, 264 F.3d at 415(internal quotation marks and citation omitted), and those "where a‘fiduciary or personal trust relationship exists’ with [the victim], andthe defendant takes advantage of the relationship to perpetrate or con-ceal the offense," United States v. Koehn, 74 F.3d 199, 201 (10th Cir.13UNITEDSTATESv. CAPLINGER
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1996) (citation omitted). Only the latter circumstances justify theenhancement. At bottom, § 3B1.3’s critical term — "position of pub-lic or private trust" — is "a term of art, appropriating some of theaspects of the legal concept of a trustee or fiduciary." United Statesv. Garrison, 133 F.3d 831, 839 n.18 (11th Cir. 1998) (internal quota-tion marks and citation omitted). In other words, application of theenhancement "requires more than a mere showing that the victim hadconfidence in the defendant. Something more akin to a fiduciary func-tion is required." United States v. Brunson, 54 F.3d 673, 678 (10thCir. 1995). Cf. Bollin, 264 F.3d at 416 (§ 3B1.3 applies when thedefendant has broad discretion to act on behalf of the victim, and thevictim believes the defendant will act in the victim’s best interest);Moore, 29 F.3d at 180 (defendant must be in a trust relationship withthe victim that permits the defendant to "commit a difficult-to-detectwrong"). The district court identified "the investors" as the victims ofCaplinger’s fraud scheme. Although the district court did not specifi-cally identify the investors, it appears that the court was referring tothose individuals who bought shares of IPI, the corporation throughwhich Caplinger’s venture was run. Caplinger’s relationship with theinvestors determines whether he occupied a position of trust. To beginwith, the fact that Caplinger posed as a physician does not by itselfmean that he occupied a position of trust. See Gordon, 61 F.3d at 269("The abuse of trust enhancement was not designed to turn on formal-istic definitions of job type."). Caplinger did not assume a physician-patient relationship with any of the victims. Rather, the victims weresimply investors who put their money in IPI (Caplinger’s ImmuStimmarketing venture) based on the solicitations and representations ofWeekly and Kampetis. Weekly and Kampetis, of course, passed onto the investors information about Caplinger’s portrayal of himself asa prominent physician. The false information about Caplinger’s cre-dentials and experience did assist in convincing investors and in mak-ing them more confident about their investment. But Caplinger hadessentially an entrepreneurial relationship with his investors: he heldhimself out as an accomplished physician who would organize, man-age, and promote the ImmuStim marketing project. Any trust theinvestors placed in Caplinger was not based on a special relationshiphe had with them as a physician, but on the investors’ misplacedbelief in Weekly’s and Kampetis’s representations about Caplinger’s14UNITEDSTATESv. CAPLINGER
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credentials and the ImmuStim project’s potential for success. Com-pare United States v. Jolly, 102 F.3d 46, 48-50 (2d Cir. 1996) (noabuse of trust when the defendant solicited loans from investors forbogus business venture but did not hold himself out as an investmentadvisor or broker to the investors); Mullens, 65 F.3d at 1566-67 (noabuse of trust when the defendant operated a ponzi scheme but did nothold himself out as an investment broker and did not have a "special,close, or personal attachment, or fiduciary relationship, with any" ofthe investors), with Bollin, 264 F.3d at 415-16 (abuse of trust whendefendants held themselves out as debentures traders and brokers totheir clients); United States v. Hirsch, 239 F.3d 221, 227 (2d Cir.2001) (same). In sum, although Caplinger’s assumed status as anaccomplished physician was used by Weekly and Kampetis to per-suade the investors (the victims) to put money into Caplinger’s ven-ture, the facts do not support the conclusion that Caplinger, by posingas a physician, occupied a "position of trust" with the victims as thatterm is used in § 3B1.3 of the Guidelines. See Morris, 286 F.3d at1297. We therefore vacate Caplinger’s sentence and remand forresentencing without the enhancement for abuse of trust. IV.To recap, we affirm Caplinger’s money laundering convictions. Asto the determination of his sentence, we affirm the district court’s ref-erence to the money laundering guidelines, its grouping of the moneylaundering and fraud counts under U.S.S.G. § 3D1.2(d), and its com-putation of the amount of loss. The district court erred, however, inassessing Caplinger with a two-level enhancement under U.S.S.G.§ 3B1.3 for abuse of a position of trust. We therefore vacate the sen-tence and remand the case for Caplinger to be resentenced withoutthis enhancement.AFFIRMED IN PART, VACATEDIN PART, AND REMANDED15UNITEDSTATESv. CAPLINGER
64.233.161.104 |
