                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-2304
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

RONALD SNOOK,
                                            Defendant-Appellant.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
             No. 00 CR 699-2—Ruben Castillo, Judge.
                          ____________
    ARGUED JANUARY 7, 2003—DECIDED APRIL 23, 2004
                    ____________



  Before COFFEY, ROVNER, and EVANS, Circuit Judges.
  ROVNER, Circuit Judge. A jury found Ronald Snook guilty
of one count of conspiring to defraud the federal government
by violating the Clean Water Act, 18 U.S.C. § 371, 33 U.S.C.
§§ 1317(d) and 1319(c)(2)(A), and five counts of concealing
material information regarding a matter within the juris-
diction of the federal government, 18 U.S.C. § 1001(a)(1).
He was sentenced to concurrent terms of 21 months’
imprisonment, concurrent terms of two years of supervised
release, a $1,000 fine, and $600 in special assessments. On
appeal he challenges two evidentiary rulings, allegedly
improper statements by the prosecution during closing
2                                               No. 02-2304

arguments, and a two-level increase in his offense level for
abusing a position of trust, U.S.S.G. § 3B1.3. We affirm in
all respects.
  Between 1994 and 1997 Snook was the “Environmental
Manager” at Clark Refining & Marketing, Inc., a petroleum
refinery in Blue Island, Illinois. Prior to being Environmen-
tal Manager, Snook had worked at Clark since 1989 as an
“Environmental Specialist.” Prior to that he was a partner
of an environmental consulting firm. As Environmental
Manager at Clark, two of his duties included ensuring the
refinery’s compliance with environmental regulations and
overseeing its wastewater treatment system. Each day,
Clark discharged on average over a million gallons of
processed wastewater into a sewer system that flowed into
a water treatment plant of the Metropolitan Water Recla-
mation District of Greater Chicago (District). Relevant to
this appeal are the District’s (EPA-approved) regulations of
Clark’s wastewater discharges.
  The District’s Sewage and Waste Control Ordinance
prohibits Clark from discharging water with (1) a con-
centration of pollutants such as fats, oils, and greases of
greater than 100 milligrams per liter or (2) a pH level lower
than 5 or greater than 10. The ordinance requires discharg-
ers such as Clark to self-monitor their compliance and
submit reports (RD-115 reports) documenting compliance
semiannually to the District. In addition, the District
conducts its own periodic testing of dischargers; if it finds
that wastewater violates required limits, it will issue an
order to cease and desist. In such cases, dischargers such as
Clark are required to submit reports (RD-114 reports)
documenting that their wastewater is back in compliance.
Further, and most relevant here, for both types of reports
dischargers must submit all of their self-monitoring data
even if it was taken in addition to the minimum require-
ments, and dischargers must notify the District within 24
hours whenever they become aware of any violations.
No. 02-2304                                                   3

  In July 2000, Snook was indicted for conspiring along
with Elva Carusiello, an Assistant Manager at Clark, and
Environmental Monitoring and Technologies, Inc. (EMT), a
company Clark hired to test its wastewater, to selectively
report testing results to the District and for failing to report
violations. The indictment alleged that between 1994 and
1997 Clark had EMT test its wastewater on numerous
occasions and many of the tests revealed violations; yet
Snook submitted a number of RD-114 and RD-115 reports
on behalf of Clark that indicated results for only six days
(the minimum required) on which Clark’s wastewater
satisfied applicable standards, and he omitted any results
that showed violations. In addition, the indictment alleged
that Snook falsely told an inspector for the EPA that the
selectively reported data was the only data Clark had
collected. In January 2002, a jury found Snook guilty of
conspiracy and concealing material information regarding
a matter within the jurisdiction of the EPA.


                               I.
  On appeal, Snook’s primary argument is that the district
court erred in excluding evidence purporting to show that
Clark had selectively reported results prior to Snook
becoming Environmental Manager and that EMT selec-
tively reported results for other clients in the past. Snook
contends that this evidence was relevant to his state of
mind, showing that he believed selective reporting was the
established practice at Clark and that it was legal. The
district court concluded that absent any evidence that
Snook was even aware of these practices, any minimal
probative value the evidence might have was outweighed by
its potential to be misleading, prejudicial, or confusing. FED.
R. EVID. 403. We review the district court’s decision for
abuse of discretion and will affirm it so long as it was
reasonable. United States v. Thomas, 321 F.3d 627, 630 (7th
Cir. 2003).
4                                                No. 02-2304

  First, a preliminary matter. Although Snook argues that
the evidence was relevant to all six counts, his beliefs about
whether selective reporting was legal were irrelevant to
count one. To convict Snook for conspiring to violate the
Clean Water Act, which, in relevant part, imposes criminal
penalties for “[k]nowing violations,” 33 U.S.C.
§ 1319(c)(2)(A), the government needed to prove only that
Snook had knowledge of the underlying facts and not that
he knew the conduct was illegal. United States v. Wilson,
133 F.3d 251, 262 (4th Cir. 1997); United States v. Sinskey,
119 F.3d 712, 715-17 (8th Cir. 1997); see also United States
v. Ho, 311 F.3d 589, 605-06 (5th Cir. 2002) (Clean Air Act),
cert. denied, 123 S. Ct. 2274 (2003).
   As to the remaining counts, Snook’s beliefs about whether
he had to report all data and violations were relevant, but
we agree with the district court that this proffered evidence
was too remote—absent some evidence Snook knew about
it. And even if Snook did know about the alleged past
practices of Clark or EMT, the evidence still might have
been properly excluded absent further evidence that he was
told, trained, or otherwise led to believe that selective
reporting was the proper procedure. (Perhaps he was aware
of the practices and told they were illegal or was told or
trained to do otherwise.) Thus the district court’s apt
description that “[u]nless there’s some link-up to this
defendant, all we’re dealing with is what I believe are
various inferences upon inferences of speculation.” There-
fore, given Snook’s lack of evidence that he was aware of
theses practices or that he was ever told they were legal,
the district court did not abuse its discretion in excluding
this evidence.


                             II.
  Snook next argues that the district court erred in allowing
the government to present “other acts” evidence. FED. R.
No. 02-2304                                                  5

EVID. 404(b). A former EMT technician testified that in
either 1992 or 1993 he returned samples of what he be-
lieved to be hazardous materials to Clark, and Snook told
him to dispose of the materials at or near a canal dock.
Snook argued that this was improper evidence offered to
show his propensity to violate environmental laws; the
government argued that it showed motive, intent, and plan,
see FED. R. EVID. 404(b), i.e., Snook’s motive, intent, or plan
to save money for Clark by not complying with proper
procedures. The district court admitted the testimony but
instructed the jury to regard it only as to Snook’s intent,
motive, knowledge, or plan.
  The technician’s testimony was rather ambiguous, and
therefore of limited probative value: for example, he could
not be sure whether the samples actually contained haz-
ardous materials, whether he actually showed the samples
to Snook, or whether Snook was referring him to a proper
disposal area located near the dock. But we need not decide
whether this testimony was erroneously admitted, because
even if it was, it was harmless due to the district court’s
limiting instruction and, more importantly, the overwhelm-
ing evidence of Snook’s guilt. See, e.g., United States v.
Rollins, 301 F.3d 511, 520 (7th Cir. 2002). First, the
government offered a number of documents including both
(1) reports prepared and signed by Snook that revealed only
favorable data, and (2) more complete reports prepared for
Clark from the same period showing numerous violations
that were not turned over to the District. (And Snook never
challenged the fact that he engaged in selective reporting.)
Second, an EMT employee, Nick Preys, testified that Snook
(1) contacted him to perform testing for Clark; (2) instructed
him to provide two types of reports: one with all testing
data, and one with only data showing passing results for six
separate days during the testing period; and (3) later
instructed Preys to prepare RD-115 reports for Clark using
only passing data. Third, Snook’s assistant, Carusiello,
6                                                No. 02-2304

testified that Snook showed her portions of the District’s
reporting ordinance and acknowledged to her that viola-
tions needed to be reported within 24 hours. Fourth, the
government submitted correspondence from Snook to the
District in which he acknowledged that all data must be
submitted and violations reported. Fifth, an EPA investiga-
tor testified that Snook repeatedly told him that the
selectively reported data was all that Clark had collected.
Sixth, two environmental experts testified that the report-
ing requirements were common knowledge among those in
the environmental field. Finally, the government estab-
lished that Snook had worked for a number of years in the
environmental field. Given this evidence, we fail to see how
Snook was prejudiced by the technician’s testimony.


                             III.
   Snook also argues that on three occasions during closing
argument the government improperly commented on his
decision not to testify at trial. First, after summarizing the
government’s case, the prosecutor asked, “[a]nd what is the
defendant’s response?” Second, after referring to statements
made in Snook’s opening statement, the prosecutor stated,
“I’ve heard nothing, nothing that backs up those representa-
tions.” Third, in discussing the conspiracy count, the
prosecutor stated that “[a]ll you have to find is that [Snook]
agreed not to report violations, and the evidence is basically
uncontroverted in that instance.”
  The Fifth Amendment prohibits prosecutors from inviting
jurors to draw adverse inferences from a defendant’s
decision not to testify by commenting, either directly or
indirectly, on that decision. United States v. Mietus, 237
F.3d 866, 871 (7th Cir. 2001); United States v. Robbins, 197
F.3d 829, 835 (7th Cir. 1999). Indirect comments are
improper if either the prosecutor manifestly intended to
refer to the defendant’s silence or a jury would naturally
No. 02-2304                                                7

and necessarily take the comments to be a remark on that
silence. Mietus, 237 F.3d at 871. Comments that govern-
ment evidence is unrebutted are improper only if the
defendant was the only person who could have rebutted the
evidence. Id. If the prosecutor’s statements are improper,
we determine whether the defendant was prejudiced, or
whether the statements rendered the trial so unfair as to
deny the defendant due process. Robbins, 197 F.3d at 836.
  The context of the first two statements reveals that the
prosecutor was commenting on Snook’s case rather than on
his decision not to testify. The first statement (“And what
is the defendant’s response?”) came as a transition after a
summary of the government’s case and just before a sum-
mary of the case put on by Snook. The second statement
(“I’ve heard nothing, nothing that backs up those representa-
tions.”) was a response to statements made by Snook’s
counsel that the evidence would show that selective re-
porting was the established procedure at Clark and the one
taught to Snook (this referred to the excluded evidence
discussed above in part I). And following both statements,
the district court reminded the jury that the government
and not Snook had the burden of proof. See United States v.
Wilson, 237 F.3d 827, 835 (7th Cir. 2001) (juries assumed to
follow instructions). Because these statements were com-
ments on the weakness of Snook’s case rather than his
silence, they were not improper. See United States v. Xiong,
262 F.3d 672, 675 (7th Cir. 2001) (prosecutor may comment
on weakness of defendant’s case).
  The third statement is a closer call. The prosecutor’s
comment that Snook’s decision to selectively report was
“basically uncontroverted” would be inappropriate if Snook
were the only person who could refute the point. But this
was not the case. Snook’s counsel could have, for example,
tried to show that the documents Snook submitted did
report all the available data or that others submitted the
data without his knowledge. Moreover, Snook never chal-
8                                                No. 02-2304

lenged whether he selectively reported; his theory was that
he believed it to be legal. So the prosecutor was more likely
referring to this fact rather than Snook’s silence. Consistent
with this is the prosecutor’s statement immediately before
that, on the conspiracy count, the government need not
prove Snook knew the practice was illegal. But even if this,
or the other two statements, crossed the line and were
improper, Snook was not prejudiced because of the over-
whelming evidence of his guilt, as discussed above. See
Mietus, 237 F.3d at 873; Xiong, 262 F.3d at 676.


                             IV.
  Finally, Snook challenges the district court’s decision to
impose a two-level increase in offense level for abusing a
position of trust. U.S.S.G. § 3B1.3. The increase is appropri-
ate when a defendant occupies a position of trust and
abuses that trust to significantly facilitate a crime. United
States v. Cruz, 317 F.3d 763, 766 (7th Cir. 2003); United
States v. Mabrook, 301 F.3d 503, 510 (7th Cir. 2002). No
formal labels or categories dictate when a defendant
occupies such a position; instead we look to the relationship
between the defendant and the victim and the level of
responsibility the defendant was given. Mabrook, 301 F.3d
at 510. We review the district court’s interpretation of the
Guidelines de novo, and we review the district court’s
finding that the defendant occupied and abused a position
of trust for clear error. Cruz, 317 F.3d at 765-66; Mabrook,
301 F.3d at 510.
  The district court imposed the increase after finding that
Snook occupied and abused a position of trust with respect
to his victims, the District and the public, based on the
responsibilities given to Snook in his job and under the
statute, and his potential to affect health and safety. Snook
contends that he occupied a position of trust with respect to
No. 02-2304                                                 9

Clark but not to the District or the public. We disagree. The
Clean Water Act is public-welfare legislation and the
victims of violations are the public. United States v. Technic
Servs., Inc., 314 F.3d 1031, 1049 (9th Cir. 2002). As Envi-
ronmental Manager at Clark, Snook was given discretion to
devise Clark’s wastewater treatment and testing systems,
as well as to decide when to conduct such testing. And
although the District did periodically conduct its own
testing, it was for the most part dependent on the data that
Clark reported. The facts here illustrate this point effec-
tively—for over three years Clark’s wastewater had numer-
ous violations that went undetected because Snook, in his
unique position as Environmental Manager, did not report
them. Moreover, unlike other self-reporting situations
(taxpayers, for example), the regulations here apply to
matters that directly and significantly affect the public’s
health and safety. See United States v. Gonzalez-Alvarez,
277 F.3d 73, 81-82 (1st Cir. 2002) (abuse-of-trust increase
applied to dairy farmer for not complying with regulations);
United States v. White, 270 F.3d 356, 372-73 (6th Cir. 2001)
(employee at water-treatment plant); United States v.
Turner, 102 F.3d 1350, 1360 (4th Cir. 1996) (owners and
operators of coal mine); but see Technic, 314 F.3d at 1049-52
(not applied to private contractor hired to clean up asbes-
tos). Given the responsibility and discretion given to Snook
in his position as Environmental Manager in complying
with the District’s regulations, and his abuse of that
position, the district court did not err in applying the
sentencing increase.
                                                  AFFIRMED.
10                                                No. 02-2304

  COFFEY, Circuit Judge, dissenting. I agree with the ma-
jority’s presentation of the facts at issue, and I concur with
the majority’s decision to affirm Snook’s conviction. How-
ever, I cannot join the majority’s decision to affirm Snook’s
sentence, because, notwithstanding the majority’s assertion
to the contrary, I do not agree that Snook occupied a
“position of trust” (as that term is used in the Guidelines)
vis-à-vis the public. Thus, it would be entirely improper to
apply the U.S.S.G. § 3B1.3 “abuse of public trust” enhance-
ment against Snook in this case.
  The district court enhanced Snook’s sentence pursuant to
U.S.S.G. § 3B1.3, which provides for a two-level enhance-
ment where a defendant abuses a “position of trust” that he
occupies in relation to the victim of his crime. Section 3B1.3
provides, in relevant part:
     If the defendant abused a position of public or private
     trust, or used a special skill, in a manner that signifi-
     cantly facilitated the commission or concealment of the
     offense, increase by 2 levels. This adjustment may not
     be employed if an abuse of trust or skill is included in
     the base offense level or specific offense characteristic.
As delineated in the commentary to the Guidelines, the
phrase “position of trust” “refers to a position of public or
private trust characterized by professional or managerial
discretion (i.e., substantial discretionary judgment that is
ordinarily given considerable deference).” U.S.S.G. § 3B1.3
comment. (n.1). In explaining the proper application of a
“position of trust” enhancement, the commentary goes on to
set forth a number of examples of “abuse of trust,” in-
cluding, “embezzlement of a client’s funds by an attorney
serving as a guardian, a bank executive’s fraudulent loan
scheme, or the criminal sexual abuse of a patient by a phy-
sician under the guise of an examination.” Id.
  In the case before us, the trial judge found that Snook, as
the Environmental Manager at a private petroleum refinery
No. 02-2304                                                         11

(Clark), held a “position of trust” vis-à-vis the public.1
Moreover, the court concluded that by violating the Clean
Water Act (“CWA”)—a “health and regulatory stat-
ute”—Snook engaged in criminal activity that had a
“potential direct physical effect on the general public . . .
such that . . . the adjustment . . . for violating a . . . position
of trust [wa]s appropriate.” Sent. Tr. at 19-20. This Court
“review[s] the district court’s application of the enhance-
ment de novo and review[s] the finding that [Snook]
occupied such a position under the clearly erroneous stan-
dard.” United States v. Mabrook, 301 F.3d 503, 510 (7th Cir.
2002).
  As set forth under Section 3B1.3, the “abuse of trust” en-
hancement applies only where a defendant possessed the
requisite level of discretion, and, further, where that dis-
cretion was “entrusted to the defendant by the victim.”


1
  At sentencing, the court used the phrases “position of private
trust” and “position of public trust” interchangeably, and in fact,
at one point, purported to “overrule the defendant’s objection to
the use of . . . [the Section] 3B1.3 [enhancement for violation of]
position of private trust.” Sent. Tr. at 20. Elsewhere in its oral
ruling, however, the court made clear that its application of the
Section 3B1.3 enhancement was based upon Snook’s violation of
a position of public trust, noting that the CWA was “a statute that
[wa]s uniquely a health and regulatory statute, [and that Snook’s
violation thereof presented] a potential direct physical effect on
the public and the public that is trying to be served by the MWRD.”
Id. at 19-20. Where, as here, the victim of the defendant’s criminal
activity was the general public, the Section 3B1.3 enhancement
applies, if at all, if the defendant occupies a position of trust vis-à-
vis the public. See United States v. White, 270 F.3d 356, 371 (6th
Cir. 2001) (“The abuse-of-trust enhancement may only be applied
where the defendant abused a position of trust with the victim of
his charged conduct.”) Thus, as the majority has done, I will
assume the district court applied the enhancement on the basis of
Snook’s alleged violation of a position of public trust.
12                                               No. 02-2304

United States v. Broderson, 67 F.3d 452, 456 (2d Cir. 1995)
(emphasis added). That is, the “position of trust” determina-
tion is assessed “from the perspective of the victim.” United
States v. Hathcoat, 30 F.3d 913, 919 (7th Cir. 1994).
Moreover, recognizing the fiduciary nature of the “trust”
relationships set forth as examples in the commentary—
i.e., attorney/client, bank executive/bank client, and doctor/
patient relationships—courts have emphasized that, to
qualify as a “position of trust,” “[t]he guideline enhance-
ment requires more than a mere showing that the victim
had confidence in the defendant. Something more akin to a
fiduciary function is required.” United States v. Brunson, 54
F.3d 673, 678 (10th Cir. 1995) (emphasis added); see, e.g.,
Mabrook, 301 F.3d at 510 (noting that a defendant’s
fiduciary duty vis-à-vis the investors in his company placed
him in a position of private trust). Thus the victim must
have placed the defendant in a position where he or she is
performing a “fiduciary function,” or exercising discretion
over the victim’s affairs. See Varity Corp. v. Howe, 516 U.S.
489, 504 (1996). Indeed, it is worth noting that “every
example of an abuse of trust in the Commentary . . .
involves a victim entrusting an agent or employee with
discretion.” Broderson, 67 F.3d at 456.
   Applying these principles to the instant case, it is clear
that Snook did not occupy a “position of trust” vis-à-vis the
public, for the simple reason that he did not serve in a fi-
duciary (or even quasi-fiduciary) capacity with respect to
his victim, the public. One cannot be a fiduciary without
first being placed in that position by the claimed beneficiary
of the relationship. Lopacich v. Falk, 5 F.3d 210, 213 (7th
Cir. 1993) (“In order to establish evidence of a fiduciary
relationship, the plaintiff must show [first] that she reposed
confidence in the defendant . . . .”). The public did not place
Snook in the position of Environmental Manager, and thus
“entrust” him to comply with the Clean Water Act’s report-
ing requirements. Snook was not a government employee,
No. 02-2304                                                13

and thus could not be considered or classified as a public
servant by nature of his employment. Nor was he even a
private employee subject to professional licensing require-
ments, and therefore entrusted to abide by certain stan-
dards in order to maintain the public’s trust in his profes-
sion (such as a physician or an attorney). Rather, Snook
was a private employee, selected by Clark, and not the
public, to monitor the corporation’s compliance with the
Clean Water Act. And it was Clark, and not the public, who
reposed its confidence in Snook such that a fiduciary
relationship may have been created. To be sure, the public
may have “trusted” Snook to obey applicable environmental
regulations, as it “trusts” any citizen to abide by any law
protecting matters in the public interest (such as drunk
driving laws, speeding laws, reckless driving laws, anti-
theft laws, and environmental protection laws, etc.). But the
public did not entrust Snook (in the sense of placing a
fiduciary obligation on Snook) with the duty of protecting
its health and welfare interests in the environment; when
Clark selected Snook to serve as its Environmental Man-
ager, he did not take an oath of office or swear to abide by
the provisions of the Clean Water Act and protect the public
from pollutants in its water system. Thus Snook was
certainly not acting in the capacity of an agent or employee
of the general public. See Broderson, 67 F.3d at 456.
  The fact that the District’s regulatory regime involved an
element of self-reporting duty on the part of Clark (and
Snook, as Clark’s agent) does not change this result. Al-
though Snook may have been responsible for certifying
Clark’s water quality reports to the District in accordance
with the CWA, “whatever ‘trust’ [the public or the district]
placed in [Snook] was based [entirely] on the explicit
commands of [the CWA and related regulations].” Id. Thus,
Snook had bare legal and statutory obligations to the public
in general, as does any private citizen who files a tax return
or drives a vehicle on public roadways, but nothing more.
14                                                 No. 02-2304

  If any party in this scenario was a fiduciary of the public’s
environmental welfare and health safety, it was the District
Office or district officer (not Clark or Snook), insofar as the
District was ultimately responsible for ensuring Clark’s
compliance with applicable regulations. The District (or the
district officer in command) performed numerous unan-
nounced inspections of Clark’s water discharge to ensure its
compliance—anywhere from two to seven tests per year
during the years 1993 through 1996. See Tr. at 209-210,
217-18. And, whenever Clark was found not to be in
compliance, the District issued cease and desist orders to
Clark to enforce compliance. Id. at 230. Indeed, the fact
that the District monitored Clark’s discharge levels
annually—some two to seven times per year—to assure
compliance belies the Government’s claim that it was Clark,
and not the District, who was trusted to comply with the
CWA and attendant regulations.
   The majority disagrees, arguing that because the District
does not have the resources to fully monitor or ensure
Clark’s compliance with the CWA, Clark (and Snook, as
its officer) occupied a “position of trust” vis-à-vis the public.
See Opinion at 9 (“Snook was given discretion to . . . decide
when to conduct [water] testing [and] although the District
did periodically conduct its own testing, it was for the most
part dependent on the data that Clark reported.”). But this
is true of many regulatory frameworks—the IRS, for
example, certainly does not have enough resources to audit
every defaulting and defrauding taxpayer annually. Thus,
if we extend the majority’s reasoning to the IRS arena, then
every corporate executive who certifies a corporation’s tax
return to the IRS occupies a “position of public trust,” and
thus may be subject to a Section 3B1.3 enhancement for
filing a false tax return even though he has every reason to
believe his client gave him accurate information. See
Broderson, 67 F.3d at 455 (“[t]he government’s theory seems
so [expansive and] far reaching that it might cause virtually
No. 02-2304                                                    15

anyone who is commanded by statute to make an accurate
report to the government to be subject to a Section 3B1.3
enhancement . . . . [including] taxpayers who file false tax
returns . . . . We believe that it is fairly obvious that the
Sentencing Commission harbored no [such] intent that the
enhancement be so sweeping.”).
  Certainly, this would be an absurd result, for a corporate
officer who is a private employee of a private corporation, is
not a “fiduciary” or agent of the public (even though his
fraudulent reporting may do significant harm to the public
by imposing a heavier burden on other taxpayers). Equally
absurd is the notion that a research scientist who discovers
a wonder drug that is approved by the Food and Drug
Administration (“FDA”), but is later discovered to have
dangerous side effects, could be subject to a Section 3B1.3
“position of public trust” enhancement. Under the majority’s
expansive reading, such a scientist who may have negli-
gently performed his research, would have abused a
“position of public trust” in reporting his findings to the
FDA, even though the FDA is the entity ultimately respon-
sible for ensuring that the public is safe from dangerous
pharmaceuticals.
  Seeking to avoid this extension of their logic, the majority
would limit application of the public trust enhancement to
criminal activities that implicate issues of “public health.”
However, it is unclear on what basis the majority makes
this distinction, for no “health and welfare” distinction is to
be found anywhere in the text of the Sentencing Guidelines
themselves.2 Indeed, nothing in the Sentencing Guidelines


2
  Curiously, the majority cites United States v. White, 270 F.3d
356, 372-73 (6th Cir. 2001) in support of the distinction between
reporting crimes concerning “public health” (where the enhance-
ment is applicable) and all other reporting crimes (such as filing
                                                   (continued...)
16                                                    No. 02-2304

suggests that the public trust enhancement should apply in
a different manner when issues of health and safety are
concerned—and yet that is the exact distinction the major-
ity reads into the Guidelines in the instant opinion. See
Opinion at 9-10 (noting that the “public trust enhancement”
would not apply to ordinary private citizens who failed to
abide by self-reporting requirements (such as taxpayers),
but that it does apply to citizens such as Snook because
Snook violated “regulations [that] apply to matters that
directly and significantly affect the public’s health and
safety.”).
  Moreover, save for the First Circuit’s opinion in United
States v. Gonzalez-Alvarez, 277 F.3d 73, 81-82 (1st Cir.
2002), no other circuit court (including the Seventh Circuit)
has extended the public trust enhancement to private
individuals who work in industries that are regulated to
protect the public health but this is exactly what the


(...continued)
a false IRS return). Although the White Court did find an abuse
of public trust where the defendant had committed an environ-
mental wrong, White is distinguishable from the instant case, in
that it involved the environmental wrongdoings of an officer of a
local Water District—a governmental entity, and not a private
corporation—who was on the public’s payroll and clearly had a
duty to the public. That is, the Sixth Circuit concluded that the
defendant occupied a position of public trust because he, a public
servant, was “charg[ed] [with the control of the Water District’s]
water purification efforts with apparently little or no oversight.”
Id. at 372. Thus, the Court “imputed” the “quasi-fiduciary trust
relationship between the District and its customers” to White. Id.
at 373.
  In this case, by contrast, Clark did not serve the general public,
insofar as it was a private oil refinery and not a governmental
water provider. Thus, there exists no quasi-fiduciary relationship
between Clark and the public that may be imputed to Clark’s em-
ployees (including Snook).
No. 02-2304                                                     17

majority has chosen to do by announcing the “public health”
distinction it sets forth today. In fact, the Ninth Circuit
expressly rejected such a distinction in United States v.
Technic Services, Inc., 314 F.3d 1031 (9th Cir. 2002), noting
that, while the importance of health and safety laws may
“heighten the amount of interest the public has in [citizens
abiding by such laws],” such fact alone “do[es] not [estab-
lish] the relational kind of interest that is required to find a
position of public trust” under the Guidelines. Technic
Services, 314 F.3d at 1050 (emphasis added).
  Indeed, the position of trust inquiry focuses not on the
nature of the statute violated by the defendant, but rather
on whether or not a “ ‘fiduciary or personal trust relation-
ship exist[ed]’ with [the victim], and [whether] the de-
fendant t[ook] advantage of the relationship to perpetrate
or conceal the offense.’ ” United States v. Caplinger, 339
F.3d 226, 237 (4th Cir. 2003) (quoting United States v.
Koehn, 74 F.3d 199, 201 (10th Cir. 1996)). Thus, for a
defendant to have occupied a position of trust with the
public, he must have worked as an agent or employee of the
government, or held some other fiduciary-type position vis-
à-vis the government or the public, and this was not the
case in the factual situation before us.3 See, e.g., United


3
  Notably, the First Circuit, in Gonzalez-Alvarez, 277 F.3d 73 (1st
Cir. 2002), is the only court that has ever found that the “abuse of
public trust” enhancement applies to a wholly private employee
whose profession was not regulated by professional licensing
requirements. Until Gonzalez-Alvarez, the broadest application of
the enhancement was to beneficiaries of government contracts,
see, e.g., United States v. Velez, 185 F.3d 1048 (9th Cir. 1999)
(private immigration consultant who was given favored status
under a statutory grant when submitting applications to the
Immigration and Naturalization Service), physicians, see, e.g.,
                                                     (continued...)
18                                                No. 02-2304

States v. Kuhn, 345 F.3d 431, 437 (6th Cir. 2003) (hold-
ing that the Superintendent of a city’s water treatment
plant held a position of public trust because he was a
“government employee, charged with the safe and efficient
operation of a wastewater treatment operation”); Technic
Services, 314 F.3d at 1050 (concluding that the secretary of
a government contractor in charge of asbestos clean-up did
not hold a position of public trust, because he had “no trust
relationship with the government by virtue of government
employment; nor was he a public officer with a ‘special’ or
quasi-fiduciary relationship to particular members of the
public because of duties to protect their health; nor did
he hold a position in which the public directly delegates
duties and places the public welfare in the incumbent’s
hands”); United States v. White, 270 F.3d 356, 372-73 (6th
Cir. 2001) (holding that an employee of the local Water
District held a position of trust vis-à-vis the public, because
customers of the Water District “granted the District sub-
stantial discretion . . . as to how to provide [their drinking
water]” and that such “quasi-fiduciary trust relationship . . .
[was] imput[able]” to the District employee); Broderson, 67
F.3d at 452 (holding that employee of government contrac-
tor did not occupy position of trust vis-à-vis the government,
for in his negotiations with the government, he was bound
not by fiduciary obligations, but by the Truth in Negotia-
tions Act and the Federal Acquisition Regulations). But see
Gonzalez-Alvarez, 277 F.3d at 81 (concluding that a dairy
farmer held a position of public trust, insofar as the public
“was entitled to have diary farmers such as [defendant]
provide milk . . . compliant with all FDA and ORIL regula-
tions”). And, pertinent to the instant case, “statutory



(...continued)
United States v. Rutgard, 116 F.3d 1270 (9th Cir. 1997), and
attorneys, see, e.g., United States v. Hemmingson, 157 F.3d 347
(5th Cir. 1998).
No. 02-2304                                                 19

reporting requirements do not create a position of trust [or
fiduciary obligation] relative to a victim of the crime.”
United States v. Garrison, 133 F.3d 831, 840 (11th Cir.
1998).
  No matter how egregious a defendant’s conduct, Section
3B1.3’s abuse of trust enhancement may not be applied
against him unless he occupied a position of trust vis-à-vis
the victim, and abused that position of trust to facilitate his
crime. In the factual situation presented to us, the fact that
Snook was not employed by the government (but, rather, a
private oil refinery), together with the fact that Snook’s
environmental reports submitted to the District were
“monitored” by the District through random sampling (some
two to seven times per year) reveals that Snook did not
have a fiduciary or personal trust relationship with the
victim, the public (or the victim’s fiduciary, the District).
Thus, the Section 3B1.3 public trust enhancement does not
apply. For this reason, the sentencing court’s application of
the public trust enhancement to Snook was clearly errone-
ous; I would reverse the imposed sentence and remand for
resentencing.

A true Copy:
       Teste:
                         ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                    USCA-02-C-0072—4-23-04
