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United States v. Ollison

United States Court of Appeals for the Fifth Circuit

January 6, 2009, Filed

No. 07-11029

Opinion

 [*155]  DeMOSS, Circuit Judge:

Defendant-Appellant Marsha August Ollison was charged by indictment with three counts of theft from an organization receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(A). A jury found Ollison guilty of all three counts, and the district court sentenced her to an eighteen-month term of imprisonment and a three-year term of supervised release. Ollison  [*156]  was also ordered to pay restitution in the amount of $ 64,633.

Dallas Independent School District (DISD) receives more than $ 10,000 in each fiscal year from the federal government in the form of educational or block grants. As an employee of DISD, Ollison was given a credit card, known as a procurement card (P-Card), in order to make official purchases on behalf of DISD.  [**2] The jury found that Ollison used her P-Card to make unauthorized personal purchases exceeding $ 5,000 in each of the three fiscal years alleged in the indictment. For sentencing and restitution purposes, the district court found that Ollison used her P-Card to make personal purchases totaling approximately $ 64,633 during the relevant time period.

Ollison raises six issues challenging her conviction and sentence. Ollison argues that: (1) there is not legally sufficient evidence that she defrauded DISD of at least $ 5,000 in each fiscal year alleged in the indictment; (2) the district court erred in refusing to dismiss the indictment because it is unconstitutional to apply § 666 to low-level employees like herself; (3) the district court abused its discretion in allowing Special Agent Steven Sepeda to testify as a summary witness and to express his lay opinion regarding whether certain purchases were official or personal; (4) the district court improperly instructed the jury that Jimmy Talley, a defense witness, was not testifying as an expert; (5) the district court clearly erred in determining the loss amount for sentencing purposes and plainly erred in calculating the restitution  [**3] amount; and (6) the district court clearly erred when it found that Ollison was subject to a two-level sentencing enhancement for abuse of a position of trust.

For the reasons explained below, we affirm the conviction but reverse the sentence and remand with instructions not to apply the enhancement for abuse of a position of trust.

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555 F.3d 152 *; 2009 U.S. App. LEXIS 203 **

UNITED STATES OF AMERICA, Plaintiff-Appellee v. MARSHA AUGUST OLLISON, Defendant-Appellant

Prior History:  [**1] Appeal from the United States District Court for the Northern District of Texas.

United States v. Ollison, 2007 U.S. Dist. LEXIS 12639 (N.D. Tex., Feb. 23, 2007)

Disposition: AFFIRMED IN PART; REVERSED IN PART; REMANDED.

CORE TERMS

purchases, district court, enhancement, position of trust, sentencing, receipts, employees, fiscal year, occupied, concealment, amount of loss, facilitated, purposes, theft, federal funds, bank teller, indictment, ending, opinion testimony, guideline, exhibits, spending, standard of review, calculating, detection, factors, discretionary judgment, managerial discretion, private trust, investigators

Criminal Law & Procedure, Standards of Review, De Novo Review, Sufficiency of Evidence, Evidence, Weight & Sufficiency, Theft & Related Offenses, Larceny & Theft, General Overview, Crimes Against Persons, Bribery, Embezzlement, Admissibility, Circumstantial & Direct Evidence, Elements, Harmless & Invited Error, Evidence, Types of Evidence, Testimony, Abuse of Discretion, Documentary Evidence, Summaries, Trials, Judicial Discretion, Presentation of Evidence, Jury Instructions, Limiting Instructions, Lay Witnesses, Expert Witnesses, Expert Witnesses, Appeals, Sentencing Guidelines, Adjustments & Enhancements, Sentencing, Restitution, Presentence Reports, Burdens of Proof, Allocation, Clear Error Review, Criminal Offenses, Fraud, Penalties