United States v. Leonard Fritzson, 979 F.2d 21, 2d Cir. (1992)

979 F.
2d 21
70 A.F.T.R.2d 92-6088
UNITED STATES of America, Appellee,

v.
Leonard FRITZSON, Defendant-Appellant.
No. 278, Docket 92-1267.
United States Court of Appeals,

Second Circuit.
Argued Oct. 22, 1992.
Decided Oct. 23, 1992.
Stanley J. Okula, Jr., Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J.

Maloney, U.S. Atty., E.D. New York, Emily Berger, Asst. U.S. Atty., on
the brief), for appellee.
Marjorie M. Smith, New York City (The Legal Aid Society, Federal
Defender Services Appeals Unit, on the brief), for defendant-appellant.
Before KEARSE, MINER, and MAHONEY, Circuit Judges.
PER CURIAM:
Defendant Leonard Fritzson appeals from a final judgment of the United States
District Court for the Eastern District of New York, convicting him following
his plea of guilty before Leonard D. Wexler, Judge, of mail fraud, in violation
of 18 U.S.C. 1341 (Supp. I 1989), and making and presenting false claims to
the Internal Revenue Service ("IRS"), in violation of 18 U.S.C. 287 (1988).
He was sentenced principally to 15 months' imprisonment, to be followed by a
three-year term of supervised release. On appeal, Fritzson contends that the
district court, in calculating his sentence under the federal Sentencing
Guidelines ("Guidelines"), erred in increasing his offense level on the basis that
Fritzson's special skill as an accountant significantly facilitated the commission
of his offenses. We disagree and affirm the judgment.
In furtherance of a scheme to obtain a total of some $48,000 in income tax
"refunds" from the government, Fritzson filed false tax returns for his infant
children. The returns showed that in 1988, his then-three-year-old child had
earned $57,200; and that in 1989, that child had earned $68,900 and his other
child, two years old, had earned $63,150. All three returns showed unusually
high amounts of withholding. In order to make it appear that the returns were
legitimate, Fritzson, an accountant, prepared and attached to them fictitious
Form W-2 Wage and Tax statements, supposedly issued to the children by their
supposed employers, confirming the high amounts withheld. Fritzson also filed
with the appropriate authorities fictitious W-3 forms ("Transmittal of Income
and Tax Statements") and submitted fictitious payroll tax returns.
3
Eventually charged with the mail-fraud and false-statement offenses described

above, Fritzson pleaded guilty. Under 2F1.1 of the Guidelines, the court
calculated the initial base offense level for Fritzson's offenses as 6; this was
adjusted upward by five steps based on the aggregate amount of the fraud, plus
two steps because the offense involved more than minimal planning, resulting
in an interim offense level of 13. In addition, the court added two points under
Guidelines 3B1.3 because Fritzson had used his special accounting skills in
attempting to carry out his scheme. Fritzson challenges this last adjustment,
contending that no special skill is required for the completion and filing of W-2
and W-3 forms and related payroll tax returns. We disagree.
Guidelines 3B1.3 provides, in pertinent part, that the offense level should be
increased by two levels "[i]f the defendant ... used a special skill, in a manner
that significantly facilitated the commission or concealment of the offense." An
Application Note to this section states that
5
"[s]pecial
skill" refers to a skill not possessed by members of the general public and
usually requiring substantial education, training or licensing. Examples would
include pilots, lawyers, doctors, accountants, chemists, and demolition experts.
6
Guidelines 3B1.3 Application Note 2 (emphasis added). The fact that the
same offenses could have been committed by a person without the defendant's
special training is immaterial; a 3B1.3 adjustment is proper where the
defendant's special skills increase his chances of succeeding or of avoiding
detection. See, e.g., United States v. Connell, 960 F.2d 191, 198-99 (1st
Cir.1992) (adjustment appropriate for licensed stockbroker guilty of money
laundering); United States v. Sloman, 909 F.2d 176, 181 (6th Cir.1990)
(adjustment appropriate for insurance claims adjuster guilty of mail fraud with
respect to insurance scheme).
In reviewing a sentencing court's calculations under the Guidelines, an appellate
court must "give due deference to the district court's application of the
guidelines to the facts." 18 U.S.C. 3742(e) (1988). This standard governs our
review of the court's determination of whether a 3B1.3 adjustment is
warranted. See, e.g., United States v. Sharpsteen, 913 F.2d 59, 62 (2d Cir.1990)
(assessment of whether defendant's special skill as printer facilitated
counterfeiting offense).
8
In the present case, the district court referred to Cheek v. United States, 498
U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991), which noted that "[t]he
proliferation of statutes and regulations has sometimes made it difficult for the
average citizen to know and comprehend the extent of the duties and
obligations imposed by the tax laws." Id. at ----, 111 S.Ct. at 609. The district
court found that with respect to tax matters, Fritzson, as an accountant, had
special skills beyond the abilities possessed by the average person who was not
an accountant, and that Fritzson used those skills in preparing the fraudulent
forms at issue here. The court ruled that 3B1.3 was therefore applicable. The
record supports this view. Fritzson's chances of succeeding on his fraudulent
claims for income tax refunds were increased by his filing of the false W-2 and
W-3 forms. Those chances were further enhanced by his preparation and filing
of false corporate payroll tax returns to bolster the withholding representations
made in the false income tax returns. An accountant's knowledge of the
withholding process, including the roles of the claim and transmittal
documents, and how and when to file them, exceeds the knowledge of the
average person. And Fritzson's filing of the complementary corporate
documents was a creative step plainly spawned by his expertise.
Accordingly, we see no abuse of discretion in the district court's 3B1.3

adjustment of Fritzson's offense level because his special skill as an accountant
significantly facilitated the commission of his offenses. The judgment of
conviction is affirmed.

United States v. Leonard Fritzson, 979 F.2d 21, 2d Cir. (1992)

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979 F.

UNITED STATES of America, Appellee,

United States Court of Appeals,

Stanley J. Okula, Jr., Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J.

In furtherance of a scheme to obtain a total of some $48,000 in income tax

Eventually charged with the mail-fraud and false-statement offenses described

In reviewing a sentencing court's calculations under the Guidelines, an appellate

Accordingly, we see no abuse of discretion in the district court's 3B1.3

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