366 F.3d 439
UNITED STATES of America, Plaintiff-Appellee,v.Ronald SNOOK, Defendant-Appellant.
No. 02-2304.
United States Court of Appeals, Seventh Circuit.
Argued January 7, 2003.
Decided April 23, 2004.

COPYRIGHT MATERIAL OMITTED Timothy J. Chapman (argued), Chicago, IL, for Plaintiff-Appellee.
David J. Stetler, Jonathan M. Cyrluk (argued), Stetler & Duffy, Chicago, IL, for Defendant-Appellant.
Before COFFEY, ROVNER, and EVANS, Circuit Judges.
ILANA DIAMOND ROVNER, Circuit Judge.

1
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 jurisdiction 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 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.

2
Between 1994 and 1997 Snook was the "Environmental Manager" at Clark Refining & Marketing, Inc., a petroleum refinery in Blue Island, Illinois. Prior to being Environmental 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 Reclamation District of Greater Chicago (District). Relevant to this appeal are the District's (EPA-approved) regulations of Clark's wastewater discharges.

3
The District's Sewage and Waste Control Ordinance prohibits Clark from discharging water with (1) a concentration 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 dischargers 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 requirements, and dischargers must notify the District within 24 hours whenever they become aware of any violations.

4
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.

5
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 selectively 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).

6
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, 539 U.S. 914, 123 S.Ct. 2274, 156 L.Ed.2d 129 (2003).

7
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." Therefore, 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.

8
Snook next argues that the district court erred in allowing the government to present "other acts" evidence. FED. R. EVID. 404(b). A former EMT technician testified that in either 1992 or 1993 he returned samples of what he believed 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.

9
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 hazardous 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 overwhelming 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, testified that Snook showed her portions of the District's reporting ordinance and acknowledged to her that violations 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 investigator testified that Snook repeatedly told him that the selectively reported data was all that Clark had collected. Sixth, two environmental experts testified that the reporting requirements were common knowledge among those in the environmental field. Finally, the government established 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.

10
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 representations." 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."

11
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 and necessarily take the comments to be a remark on that silence. Mietus, 237 F.3d at 871. Comments that government 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.

12
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 summary of the case put on by Snook. The second statement ("I've heard nothing, nothing that backs up those representations.") was a response to statements made by Snook's counsel that the evidence would show that selective reporting 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 comments 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).

13
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 challenged 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 overwhelming evidence of his guilt, as discussed above. See Mietus, 237 F.3d at 873; Xiong, 262 F.3d at 676.

IV.

14
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 appropriate 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.

15
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 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 Environmental 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 effectively — for over three years Clark's wastewater had numerous 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 asbestos). 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.

16
AFFIRMED.

17
COFFEY, Circuit Judge, dissenting.

18
I agree with the majority's presentation of the facts at issue, and I concur with the majority's decision to affirm Snook's conviction. However, 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" enhancement against Snook in this case.

19
The district court enhanced Snook's sentence pursuant to U.S.S.G. § 3B1.3, which provides for a two-level enhancement 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:

20
If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly 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.

21
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," including, "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 physician under the guise of an examination." Id.

22
In the case before us, the trial judge found that Snook, as the Environmental Manager at a private petroleum refinery (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 statute" — 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 enhancement de novo and review[s] the finding that [Snook] occupied such a position under the clearly erroneous standard." United States v. Mabrook, 301 F.3d 503, 510 (7th Cir.2002).

23
As set forth under Section 3B1.3, the "abuse of trust" enhancement applies only where a defendant possessed the requisite level of discretion, and, further, where that discretion was "entrusted to the defendant by the victim." United States v. Broderson, 67 F.3d 452, 456 (2d Cir.1995) (emphasis added). That is, the "position of trust" determination 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 enhancement 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, 116 S.Ct. 1065, 134 L.Ed.2d 130 (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.

24
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 fiduciary (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 reporting requirements. Snook was not a government employee, 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 requirements, and therefore entrusted to abide by certain standards in order to maintain the public's trust in his profession (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, antitheft 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 Manager, 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.

25
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. Although 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.

26
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 unannounced 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.

27
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 445 ("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 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.").

28
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 negligently 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 responsible for ensuring that the public is safe from dangerous pharmaceuticals.

29
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 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 majority 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.").

30
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 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 [establish] 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).

31
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 relationship exist[ed]' with [the victim], and [whether] the defendant 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 States v. Kuhn, 345 F.3d 431, 437 (6th Cir.2003) (holding 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 substantial 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 contractor 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 Negotiations 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 regulations"). And, pertinent to the instant case, "statutory 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).

32
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 erroneous; I would reverse the imposed sentence and remand for resentencing.

Notes:

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 ofprivate 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.

2
 Curiously, the majority citesUnited 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 enhancement is applicable) and all other reporting crimes (such as filing a false IRS return). Although the White Court did find an abuse of public trust where the defendant had committed an environmental 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 employees (including Snook).

3
 Notably, the First Circuit, inGonzalez-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., 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).


966 F.2d 1443
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.LOUDIN INSURANCE AGENCY, INCORPORATED;  BarboursvilleInsurance, Incorporated;  Richard D. Brown Agency,Incorporated;  Matewan Insurance and Realty Company;  Freschand Reed Insurance Service, Incorporated, Plaintiffs-Appellants,v.AETNA CASUALTY & SURETY COMPANY, a corporation;  Aetna Life& Casualty Company, a corporation;  The StandardFire Insurance Company, a corporation,Defendants-Appellees.
No. 91-1579.
United States Court of Appeals,Fourth Circuit.
Argued:  February 6, 1992Decided:  June 25, 1992As Amended July 21, 1992.

Argued:  Samuel C. P. Baldwin, Sr., Baltimore, Maryland, for Appellants.
Edgar Allen Poe, Jr., Shuman, Annand & Poe, Charleston, West Virginia, for Appellees.
Before WILKINS and HAMILTON, Circuit Judges, and OSTEEN, United States District Judge for the Middle District of North Carolina, sitting by designation.
PER CURIAM:

1
Four of the plaintiffs in these consolidated actions initially brought suit in state court in West Virginia.  Those cases were removed by the defendants (herein referred to collectively as "Aetna") to the U.S. District Court for the Southern District of West Virginia, and then they filed a motion to dismiss.  Subsequently, the fifth plaintiff brought suit directly in the district court.  All five plaintiffs are represented by the same counsel and after amendments, each complaint is nearly identical.  Several months after answering, Aetna renewed its motion to dismiss each complaint.  The plaintiffs opposed the motion and moved for summary judgment on their breach of contract, conversion, and tortious interference claims.  The Court treated Aetna's motion as one for summary judgment since it considered matters outside the complaint.  After hearing oral arguments, the Court granted Aetna summary judgment as to all claims.  The plaintiffs appeal this decision.  Finding no error in the district court's decision, we affirm.

I.

2
The plaintiffs are independent insurance agents who had agency agreements with Aetna, whereby each plaintiff could write insurance policies for its clients.  At various times over the last few years (the exact dates are specified in the complaints) Aetna canceled each plaintiff's agency relationship for unprofitability.  The terminations were affected according to the terms of the agency agreement each plaintiff had with Aetna.  Further, pursuant to the terms of the agreement, Aetna informed each plaintiff that no commissions would be paid on any existing policy which might be renewed after the effective date of the termination of the agency relationship.  Aetna also informed all of the plaintiffs' clients insured by Aetna that those policies would not be renewed because their agent no longer represented Aetna.  These policyholders were advised to contact their respective agents in order to obtain coverage from another insurer.  Automobile liability insurance was among the various types of insurance coverage which had been placed by plaintiffs with Aetna for their clients.

3
Complaints were filed with the West Virginia Insurance Commissioner charging that these nonrenewals were improper under W. Va.  Code § 33-6A-4 (1988), which delineates the circumstances in which an insurer may decline to renew an existing automobile insurance policy.  Specifically, any automobile insurance policy which has been in effect for two or more years must be renewed if the policy holder so desires, with certain enumerated exceptions, none of which are relevant to this case.

4
In response to these complaints, the Insurance Commissioner issued Informational Letters Nos. 35 and 39 informing Aetna and other companies, that they could not decline to renew automobile liability insurance policies based solely on the termination of the agent who had written the policy.  Additionally, Aetna was required to affirmatively inform these policyholders of their statutory right to renewal of their policies.  Aetna complied with this directive and sent the required notice to the plaintiffs' clients, which also advised them to contact their agent (i.e., one of the plaintiffs) to discuss their insurance needs.

5
In order to handle renewals by clients of the plaintiffs who did not engage a new, authorized Aetna agent, Aetna converted those policyholders to a "direct" billing system, in which Aetna would send notices of renewal premiums being due directly to the policyholder instead of to the agent and, in turn, would receive payment directly from the insured, rather than through the agent.  Further, Aetna made available a system whereby these policyholders could make inquiries concerning, make changes to, or file claims on their Aetna policies directly with Aetna at its own offices or through a toll-free number.  Alternatively, Aetna would allow the terminated agents to continue to perform these services, so that they could maintain their business relationship with these clients, but it would not pay them any commissions on renewals or for servicing these policies.

II.

6
The jurisdiction of the Court in this case is based upon diversity of citizenship and amount in controversy.  As such, the law of the forum state applies.  The controlling case in the state of West Virginia, the plaintiffs' contentions to the contrary notwithstanding, is  Shrewsbery v. National Grange Ins. Co., 183 W. Va. 322, 395 S.E.2d 745 (1990).1

7
In Shrewsbery, the plaintiff was an independent insurance agent whose agency agreement with the defendant insurance company, National Grange, had been terminated for unprofitability.  National Grange contacted Mr. Shrewsbery's clients who were insured by it to inform them of the termination of the agency relationship and to inform those clients who had automobile insurance coverage of their right to renew the policy by dealing directly with it.  The notice to automobile liability policyholders was sent in order to comply with the West Virginia Insurance Commissioner's Informational Letter No. 39 concerning enforcement of W. Va.  Code § 33-6A-4.   Id. at 746-47.  National Grange, pursuant to the terms of its agency agreement with Shrewsbery, paid him commissions on renewals for one year after the termination of the agreement.   Id. at 747.  Shrewsbery then sued National Grange for breach of contract, tortious interference with his contracts with his clients, and conversion of his expirations.   Id. at 747-50.  The West Virginia court found for National Grange on all three causes of action.

8
The court held that Shrewsbery had no claim based upon the termination of the contract because the agreement allowed either party to terminate it on ninety days notice and this is exactly what National Grange did.   Id. at 751.  Further, he did not have a claim based upon any failure by National Grange to pay commissions on renewals of his client's policies because National Grange complied with the terms of the agency agreement regarding the payment of renewal commissions, e.g., it paid them for one year following termination:

9
It has been uniformly decided that the right of an insurance agent to commissions on renewal premiums depends upon the contract existing between the agent and the insurer.  The general rule is that unless the agent's contract makes allowance for the payment of commissions on renewal premiums paid by insureds after his termination, he will not be entitled to such commissions after his employment has been rightfully terminated.

10
Id. at 750 (citations omitted).   See also Allied Mutual Insurance Co. v. Roberson, 306 F.2d 130, 132 (4th Cir. 1962) (absent an express agreement between the parties, an agent is not entitled to renewals after his agency is lawfully terminated).  Additionally, the court held that National Grange did not violate the terms of the agency agreement granting Shrewsbery ownership of his expirations nor did it convert them to its own use.2  This information was only used by National Grange to notify its insureds of their statutory right to renewal, as required by the Insurance Commissioner.  "It cannot be that one can be liable to a private party under a state's tort law for doing exactly that which the state government itself has instructed him to do and threatened him with a penalty for not doing."  Id. at 750.  Finally, the court held that there could be no cause of action for tortious interference because National Grange was a principal party to the insurance contracts with its insureds and a principal cannot be held liable for tortious interference with its own contract:

11
Mr. Shrewsbery seriously misconstrues the role of an insurance agent.  He is not party to a contract with the insured;....  An agent, then, is but an incidental beneficiary to the contract between insured and insurance company.  The agent's right to commissions-his economic interest in the insurance contracts-is of no concern to the insured, and solely a matter of contract between the agent and his principal, the insurance company.

12
Id. at 748.

III.

13
The facts of the present case are nearly identical to those in Shrewsbery and involve the same legal issues.  The plaintiffs allege that Aetna breached its contracts with them by failing to pay commissions on clients' policies which were renewed after the termination of the agency agreements.  However, as Shrewsbery  makes abundantly clear, in West Virginia, this is solely a question of contract.  The plaintiffs' agency agreements state in section 3(b) that:

14
Following termination of this Agreement, the commissions specified in the Commission Schedules will not apply to the renewal of an insurance contract which the Company is required by law to renew, unless the Company failed to comply with any notice requirement which would have permitted non-renewal of the contract or unless such commissions are required by law to be paid.

15
(Emphasis added.)  As the District Court correctly found, the parties expressly agreed that commissions would not be paid on policies which Aetna was required by law to renew.  W. Va.  Code § 33-6A-4 required Aetna to renew automobile liability insurance policies which had been in effect for more than two years.  Aetna complied with this statute.  It gave the required notice, as directed by the Insurance Commissioner, which gave the policyholders the option of placing their automobile insurance with another company.  This does not constitute impermissible interference with the plaintiffs' expirations.  Moreover, unlike some states, West Virginia does not have a statute requiring the continued payment of renewal commissions after the termination of the agency relationship.  Therefore, Aetna was within its rights under the law and the contract in refusing to pay commissions under these circumstances.

16
Second, the plaintiffs allege that Aetna breached an implied covenant of good faith and fair dealing by terminating their agency agreements without cause and by reducing their future commission on renewals to 0%.  This claim is also without merit.  While some courts have read an implied covenant of good faith and fair dealing into atwill employment contracts, West Virginia does not recognize the doctrine in this context.   Shell v. Metropolitan Life Ins. Co., 183 W. Va. 407, 414, 396 S.E.2d 174, 181 (1990).  The only exception to the right to terminate such a contract is when the termination violates a substantial public policy.  Id. No such violation is alleged here.  Nor do the plaintiffs have a tort claim for any alleged breach of good faith or fair dealing.   See Cotton v. Otis Elevator Co., 627 F. Supp. 519, 520-21 (S.D.W. Va. 1986), aff'd mem., 841 F.2d 1122 (4th Cir. 1988).  Thus, the question of termination is a matter of contract.  Section 9(d) of the agency agreements allows for termination by either party upon ninety days notice.  Section 3(c) allows Aetna to revise the commission rates on ninety days notice.  Because Aetna followed the contract, this claim was properly dismissed.

17
Third, the plaintiffs allege that Aetna "converted" their expirations to its own use by mailing notices to policyholders offering to bill and service them directly if they chose to renew their policies with Aetna.  In light of Shrewsbery, there can be no merit in this claim.  The plaintiffs are confusing the right to use their expirations with the right to receive commissions on renewals.  The purpose of granting an agent a property right in his expirations is to protect his relationship with his clients.  The right to receive commissions, as outlined above, is strictly a matter of contract.  Aetna never solicited business from the plaintiffs' clients.  In fact, Aetna's letters to these policyholders urged them to contact their own agent to discuss their insurance needs.  Moreover, Aetna was required by state law to mail such notices explaining the insureds' right to renewal.  Aetna's actions in this regard, therefore, cannot be wrongful.

18
Fourth, the plaintiffs allege that Aetna tortiously interfered with their business relationships with their clients.  This claim was properly dismissed because Aetna cannot tortiously interfere with its own contracts with its insureds.  The plaintiffs are third party beneficiaries to those contracts.  Beyond that, there was no impermissible use of the plaintiffs' expirations.  In fact, Aetna would have severed its relationship with the plaintiffs' clients entirely, but for the requirements of West Virginia law.  Moreover, in its communications with the plaintiffs' clients, Aetna urged them to contact their own agent, thereby giving the plaintiffs the opportunity to place them with another insurer.  Finally, Aetna was also willing to let the plaintiffs continue to service these policies, albeit at no commission, so that they could maintain their relationship with these policyholders.  Aetna was not required to allow this and could have serviced these accounts directly.

19
Fifth, the plaintiffs claim that they are entitled to quantum meruit recovery because they continued to service these accounts without being paid.  This claim was properly dismissed for several reasons.  Necessarily, in order to recover under quantum meruit, one must have a reasonable expectation of payment.  In this case, the plaintiffs continued to service these accounts with the full knowledge that they would not be paid.  As such, they could not have had a reasonable expectation of payment.  Moreover, as the District Court reasoned, recovery under quantum meruit is based upon the idea of implied contract.  Under West Virginia law, "[a]n implied contract and an express one covering the identical subject matter cannot exist at the same time....  If the latter exists, the former is precluded."   Rosenbaum v. Price Construction Co., 117 W. Va. 160, 162, 184 S.E. 261, 263 (1936).  The agency agreements under consideration in the present case contemplated that the agent could continue to service an existing policy after termination of the agency relationship.3  At the same time, the contracts expressly state, in section 3(b), that no commissions will be paid on policy renewals which Aetna was required by law to renew.  The parties' agreement is plain and unambiguous.  The court will not rewrite the parties' contract simply because one party is no longer satisfied with the bargain he struck.

20
Finally, the plaintiffs allege that they are entitled to civil damages under the RICO statute.  This claim is based on the characterization of Aetna's communications with its policyholders and the Insurance Commissioner as "mail fraud."  This claim is likewise without merit.  To make out a civil action for damages under RICO, a private plaintiff must make two closely related showings in order to have standing to prosecute a claim:  (1) that he has suffered injury to his business or property;  and (2) that this injury was caused by the predicate acts of racketeering activity that make up the violation of 18 U.S.C. § 1962.   Brandenburg v. Seidel, 859 F.2d 1179, 1187 (4th Cir. 1988) (citations omitted).  The plaintiffs can make neither showing in this case.  Aetna's refusal to pay them commissions on post-termination renewals of automobile insurance policies was not wrongful and therefore did not "injure" them in a manner contemplated under RICO.  Further, even if, arguendo, Aetna's communications to the insureds contained misrepresentations, this could not be the proximate cause of Aetna's failure to pay them commissions.  Thus, this claim was also properly dismissed.

AFFIRMED

1
 The plaintiffs' only attempt to distinguish Shrewsbery is that it involved an employee of an insurance company, while plaintiffs are independent agents.  This contention cannot prevail.  The Court specifically said that Shrewsbery was "an independent insurance agent ... "  Id. at 746

2
 The Fourth Circuit has defined"expirations" in the insurance field to include "the records of an insurance agency by which the agent has available a copy of the policy issued to the insured or records containing the date of the insurance policy, the name of the insured, the date of its expiration, the amount of insurance, premiums, property covered and terms of insurance.  This information enables the agent to contact the insured before the existing contract expires and arms him with the information essential to secure another policy and to present to the insured a solution for his insurance requirements.  It has been determined that this information is of vital assistance to the agency in carrying on the insurance business and it has become, in the insurance field, recognized as a valuable asset in the nature of goodwill."   Phillips & Co. v. Penn.  Threshermen & Farmers' Mut. Casualty Ins. Co., 199 F.2d 244, 246 (4th Cir. 1952).  This definition and rationale were adopted by the Shrewsbery court

3
 Section 9(d)(4) states that"The Agent will continue to be authorized, subject to the underwriting rules and practices of the Company, to effect any necessary changes in outstanding policies of insurance, provided that the expiration dates of such policies may not be extended by issuance of replacement policies or other means."


423 So.2d 448 (1982)
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant,
v.
Clyde V. HANKERSON, Appellee.
No. AJ-466.
District Court of Appeal of Florida, First District.
December 1, 1982.
John L. Pearce, Dept. of Health and Rehabilitative Services, Tallahassee, for appellant.
James D. White, Tallahassee Bar Ass'n, Legal Services Clinic, Tallahassee, for appellee.
WENTWORTH, Judge.
The Department of Health and Rehabilitative Services appeals an order of the Career Service Commission by which appellee's dismissal from employment was reduced to a seven month suspension. We find that the Commission's determinations lack competent substantial evidentiary support, *449 and we therefore reverse the order appealed.
Appellee and a co-employee were full-time employees of HRS, and also held an after-hours job at a local high school. After a conversation between supervisory personnel at both places of employment, both employers began to suspect that appellee may have been duplicating hours at both jobs. Rather than immediately confronting appellee with this suspicion, HRS undertook a three month investigation. A comparison of time cards revealed approximately 80 instances of duplicated hours when appellee and the co-employee were "clocked in" at the high school before being "clocked out" at HRS. After appellee was physically observed working at the high school while still "clocked in" with HRS, formal disciplinary proceedings were commenced and the agency determined that appellee should be dismissed from his employment.
Appellee sought review by the Career Service Commission and a § 110.309, Florida Statutes, de-novo fact-finding hearing was held. The Commission reduced appellee's termination to a suspension; this action was appealed and the cause was remanded to the Commission for more explicit factual findings. See Department of Health and Rehabilitative Services v. Hankerson, 404 So.2d 149 (Fla. 1st DCA 1981). On remand the Commission found that appellee had falsified his time records and had participated in a scheme with the co-employee whereby they "clocked one another in before actually arriving ... and out after actually leaving... ." However, the Commission further determined that appellee's "supervision was loose," and he was allowed "to come and go as he pleased." The Commission also found that appellee "had reason to think ... that he had consent to vary his time," that appellee had perhaps "acted on or by implied consent of his supervisor," and that "the agency failed in its responsibility as an employer to stop this conduct or to counsel the employee... ." The Commission determined that just cause did exist for disciplinary action, but did not justify the severity of the action taken, and the Commission then, pursuant to § 110.309(4)(a), reduced appellee's dismissal to a seven month suspension.
In a § 110.309 de-novo hearing the Commission, sitting "as the initial and sole trier of the facts, may judge credibility of witnesses, draw inferences from the evidence, and weigh the evidence." See Department of Natural Resources v. Edrington, 395 So.2d 577 (Fla. 1st DCA 1981). The burden of proof is upon the agency, see Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974), and this court's task on appeal is merely to determine whether the Commission acted within the ambit of its discretionary authority. See Corte v. Career Service Commission, 386 So.2d 875 (Fla. 1st DCA 1980). In this regard the inquiry is whether the Commission action is supported by competent substantial evidence. Cf., Edrington. In the present case the record evidence supports the Commission's determination that appellee falsified his time records and participated in a scheme with a co-employee whereby they duplicated hours at both places of employment. But there is a complete absence of any evidentiary support for the other findings detailed above, which the Commission relied on to support its action in this case. Although appellee was not always under the direct physical observation of his immediate supervisor, the evidence was uncontradicted that appellee was not allowed to leave HRS premises early without the express permission of his supervisor. There is no evidence that appellee was ever led to believe he could vary his hours, and an "implied consent" theory is not supported by the agency's failure to reprimand appellee during the three month investigatory period, as appellee was never advised that the agency was aware of appellee's misconduct. Furthermore, it should be noted that appellee did not merely "vary his time" as the Commission indicates, but also, as the Commission found, affirmatively falsified his time records.
We conclude that the factors which the Commission relied on in reducing appellee's *450 dismissal to a suspension are not supported by any competent substantial evidence, and we determine that the Commission, pursuant to § 110.309(2), should have affirmed appellee's dismissal.
The order appealed is reversed and the cause remanded with directions that the Commission affirm the agency action of dismissal.
McCORD and BOOTH, JJ., concur.


890 So.2d 928 (2004)
In the Matter of the Petition of David E. FLAUTT for Reinstatement to the Mississippi Bar.
No. 2003-BR-02273-SCT.
Supreme Court of Mississippi.
September 9, 2004.
*929 Andrew J. Kilpatrick Jr., Ridgeland, attorney for appellant.
Michael B. Martz, attorney for appellee.
EN BANC.
COBB, Presiding Justice, for the Court.
¶ 1. This case is before the Court, en banc, upon the petition of David E. Flautt seeking reinstatement and readmission to the Mississippi Bar. We conclude that all conditions and requirements for reinstatement have been met, save one which can only be met upon resumption of his practice of law, and we order his reinstatement, subject to that one condition.

FACTS
¶ 2. In October, 1999, this Court suspended Flautt from the practice of law for three years for misconduct involving the commingling and misuse of trust account funds. With regard to the formal complaint which was filed against him, Flautt admitted that he misappropriated a portion of $37,500 in settlement funds and misrepresented to the client what was done with the funds. During the hearing before the Complaint Tribunal, Flautt voluntarily presented testimony of two other instances in which client funds totaling approximately $75,000 in his trust account were misused. Also during the hearing there was testimony of the effect of a series of personal tragedies in Flautt's life over a period of more than four years preceding the suspension, including the deaths of his parents and the deaths of his wife's parents. There was testimony as to Flautt's psychological condition during this time that impacted his ability to manage the affairs of his practice. The Complaint Tribunal found that he violated numerous rules of professional conduct, including failure to: abide by a client's decisions; include proper contractual provisions; *930 keep his clients reasonably informed; reduce to writing his contingency fee contract; promptly deliver to the clients any funds the clients are entitled to receive, together with an accounting therefor; keep the clients' property separate from his property until there is an accounting and a severance of their interests; and to cooperate and properly respond to the Bar's lawful request for information. Further, the Complaint Tribunal found that he violated the rules of professional conduct involving dishonesty and deceit and that he misappropriated the settlement proceeds.
¶ 3. The Tribunal, in its final judgment, specified the following conditions which must be met in order to be reinstated:
In addition to the three (3) year suspension from the practice of law imposed herein, Mr. Flautt is hereby ordered to take the Multi State Professional Responsibility Exam, as prepared by the National Conference of Bar Examiners and achieve a scaled score of not less than 80 as a condition of his reinstatement to the practice of law. Also, as a further condition to Mr. Flautt's possible reinstatement to the practice of law, Mr. Flautt is directed to continue receiving counseling from Dr. Hargrove or another duly qualified psychologist or psychiatrist and to continue receiving treatment from his family physician or a successor medical doctor until maximum medical recovery is achieved at which time each will provide a statement of certification to the General Counsel. Once Mr. Flautt is reinstated, if he is granted such privilege by the Mississippi Supreme Court, Mr. Flautt is to open a new trust/escrow account for conducting his law practice and he is to submit the monthly bank statements for such escrow/trust account to the Mississippi Bar's General Counsel for his or her review for a period of twelve (12) months following such reinstatement and Mr. Flautt's resumption of the practice of law.
Flautt repaid the money and was suspended from the practice of law for three years.

DISCUSSION
¶ 4. This Court has exclusive and inherent jurisdiction regarding the discipline of attorneys as promulgated in the Rules of Discipline for the Mississippi State Bar. Miss. Bar v. McGuire, 647 So.2d 706, 708 (Miss.1994). We conduct a de novo review in cases involving the discipline of attorneys, on a case-by-case basis, as triers of fact. In re Morrison, 819 So.2d 1181, 1183 (Miss.2001). The petitioner seeking reinstatement carries the burden of proving that he has rehabilitated himself and established the requisite moral character to entitle him to the privilege of practicing law. In re Holleman, 826 So.2d 1243, 1246 (Miss.2002).
¶ 5. This Court's fundamental inquiry is whether the attorney has rehabilitated himself in conduct and character since the suspension was imposed. In re Mathes, 653 So.2d 928, 929 (Miss.1995). A firm resolve to live a correct life evidenced by outward manifestation sufficient to convince a reasonable mind clearly that the person has reformed is only required In re Underwood, 649 So.2d 825, 828-29 (Miss.1995).
¶ 6. Rule of Discipline 12, the rule governing reinstatement, provides in pertinent parts:
12.5 Subsequent to the time of eligibility for reinstatement of an attorney suspended for six months or longer, the petitioning attorney shall take the Multi-State Professional Responsibility Exam, as prepared by the National Conference of Bar Examiners, and achieve a scaled score of not less than 80, if the Complaint Tribunal determines, on a *931 case-by-case basis, that good cause exists to require the applicant for reinstatement to take such test.
* * *
12.7 All reinstatement petitions shall be addressed to the Court, shall state the cause or causes for suspension or disbarment, give the names and current address of all persons, parties, firms, or legal entities who suffered pecuniary loss due to the improper conduct, the making of full amends and restitution, the reasons justifying reinstatement, and requisite moral character and legal learning to be reinstatement to the privilege of practicing law. Upon filing, the petition shall be served on, and an investigatory fee of $500.00 shall be paid to the Bar.... The matters set out in this paragraph shall be jurisdictional.
¶ 7. In the case of In re Benson, 890 So.2d 888, 2004 WL 1853339 (Miss.2004), this Court has enunciated the five jurisdictional requirements of Rule 12.7 in a straightforward and concise manner, to insure clarity and consistency in our analysis of reinstatement cases. Applying them to the present case, we conclude that David E. Flautt has complied with the jurisdictional requirements and should be reinstated to the practice of law subject to his complying with the two conditions described below.

1. The cause or causes for suspension.
¶ 8. Flautt readily acknowledged the commingling and misuse of trust account funds in three instances, totaling approximately $75,000, and expressed regret and contrition for his misconduct. He provided specific details of personal and traumatic events in his life, including the deaths of his parents and his wife's parents during approximately four years immediately prior to the misconduct which resulted in his suspension. He sought evaluation of his psychological condition and undertook therapy, training, and counseling to prevent such misconduct from manifesting itself again. He also has relied on the evaluation and conclusions of his psychologist and physician that he has reached the point where he is able to seek reinstatement. Attached to Flautt's petition for reinstatement were two letters, dated August 17, and September 24, 2003, from his physician, Milton D. Hobbs, M.D., and one letter dated September 12, 2003, from his psychologist, David S. Hargrove, Ph.D. All recounted Flautt's bouts with depression and his recovery from it. He has not required medication since 2000, and both Dr. Hobbs and Dr. Hargrove indicate that Flautt no longer exhibits signs or symptoms of depression and has reached maximum medical improvement. Dr. Hargrove saw Flautt on a regular basis from October 1999, to August 2002, when Dr. Hargrove left Mississippi. Since that time he has seen Flautt nine times, on occasions when he has returned to Oxford on business. Dr. Hargrove wrote in his September 12, 2003, letter that Flautt was "profoundly affected by four deaths of significant people in his life in a brief period of time immediately prior to the time period of the incidents which gave rise to the Formal Complaint. The depression appeared to be related to an accumulation of traumatic events in which he was able to do little or nothing. The impact of the trauma influenced both his personal and professional functioning." Dr. Hargrove concluded his letter by saying "if there were similar traumatic events in [Flautt's] life [in the future] it is my opinion that he would handle the situation entirely different and would seek help again if need be." We find no need for further medical or psychological examinations of Flautt as a condition for reinstatement.
*932 ¶ 9. This requirement has been fully met.

2. Names and current addresses of all persons, parties, firms, or legal entities who suffered pecuniary loss due to the improper conduct.
¶ 10. Flautt provided details of his misuse of funds in his trust account which were supposed to be paid to Harold and Tanya Holt, and the Insurance Company of North America (CIGNA), which was the workers' compensation carrier claiming reimbursement of subrogation expenses from the Holts. Prior to the hearing before the Complaint Tribunal, Flautt and the Bar entered into stipulations of the facts regarding Flautt's handling of these funds, and subsequent to the filing of the formal complaint, his restoration of the funds to his clients. Based on these stipulations, the Tribunal determined that Flautt had satisfactorily disbursed the funds to CIGNA and the Holts.
¶ 11. During the hearing on the formal complaint, Flautt voluntarily presented testimony to the Tribunal of two other incidents of misuse of client funds. The Tribunal found that the evidence established that while those clients' funds may have been in jeopardy, Flautt had returned the funds without delaying the clients' receipt of the funds.
¶ 12. Because the persons and parties whose funds were misused and put in jeopardy were made whole prior to the Tribunal's judgment, there is no need for Flautt to provide their current names and addresses pursuant to this second requirement.

3. Make full amends and restitution.
¶ 13. Flautt made full amends to CIGNA in the amount of $7,982.81 in September, 1998, and to the two other clients unrelated to the charges in the formal complaint. The Tribunal made such finding in its Opinion. Further, on January 31, 2000, Flautt paid $491.87 in costs and expenses incurred in the investigation and prosecution of the suspension proceedings.
¶ 14. This requirement has been fully met.

4. Show that petitioner has the necessary moral character for the practice of law.
¶ 15. The Bar's general counsel deposed Flautt on November 13, 2003, as part of the Bar's investigation of his petition for reinstatement. Flautt voluntarily submitted to this and cooperated throughout the deposition. He testified that he joined the First Presbyterian Church of Oxford and regularly participates in a men's prayer breakfast and bible study group. He serves on the church's property, personnel, and nominating committees. In June, 2002, Flautt contacted the administrator of the Lawyers and Judges Assistance Program (LJAP) who put him in contact with the Memphis Bar Association's Lawyers Wellness Group, which he regularly attended until mid-September, 2003, at which time he became one of the founding members of the North Mississippi Wellness Group organized by the Mississippi Bar. He has assisted the LJAP administrator in helping other lawyers in North Mississippi by discussing depression related issues, encouraging them to attend group meetings, and transporting them to and from meetings.
¶ 16. We agree with the condition recommended by the Mississippi Bar that Flautt should be required to continue to participate in a program, such as LJAP or the Memphis Assistance Program, and determine that this continuation should be for a period of no less than two years following his reinstatement.
*933 ¶ 17. Flautt's petition for reinstatement is supported by letters of recommendation from bar leaders, including Jack F. Dunbar, Guthrie T. Abbott, A. Thomas Tucker, Jr., John H. Dunbar, Leland S. Smith, Edley H. Jones, III, Hale Freeland, and Robert Q. Whitwell. All speak well of Flautt and find special merit in his commitment to work hard to rehabilitate himself and regain possession of the capacity to be an asset to the public as a lawyer and to be a credit now to the profession. All urge reinstatement. Flautt has also provided the names of five sitting judges, one senior status judge, and one retired judge who will write letters of recommendation if requested to do so. We do not deem that to be necessary for his reinstatement.
¶ 18. This requirement has been fully met.

5. Demonstrate requisite legal education to be reinstated.
¶ 19. Flautt sat for the Multi-State Professional Responsibility Exam (MPRE) on November 8, 2002, which was more than three years from the October 1, 1999, date on which the Complaint Tribunal rendered its decision to suspend Flautt for three years. He achieved a scaled score of 126, when only a scaled score of 80 was required to meet the condition for reinstatement imposed by the Complaint Tribunal. He attended two Continuing Legal Education courses in November, 2002 and March, 2003, and regularly reads the opinions of this Court and the Court of Appeals.
¶ 20. The Mississippi Bar has recommended that Flautt be required to take the complete bar examination as a condition of reinstatement. However, we decline to impose that requirement here. Although Rule 12 requires disbarred attorneys to take and pass the complete bar examination, it only requires suspended attorneys to take and pass the MPRE. We see no reason to impose this greater requirement on Flautt.
¶ 21. This requirement has been fully met.
¶ 22. It is apparent that the five requirements of Rule 12 overlap, to a large extent, with the three specific conditions imposed upon Flautt by the Complaint Tribunal. There is ample evidence in the record before us to determine that Flautt has complied with two of the three specific conditions: (1) he took the Multi-State Professional Responsibility Exam and scored higher than the scaled score of 80 required of him; and (2) he continued counseling from Dr. Hargrove, and continued to receive treatment by his family physician, Dr. Hobbs, and provided a statement from them that he had reached maximum medical recovery. However, condition (3) has not been met, and cannot be met, unless and until Flautt resumes his law practice. That condition is that he must open a new trust/escrow account for conducting his law practice and to submit the monthly bank statements for that account to the Mississippi Bar's General Counsel for his or her review for a period of twelve months following his reinstatement and resumption of the practice of law.
¶ 23. The Mississippi Bar conditionally supports Flautt's reinstatement to membership in the Mississippi Bar and the reissuance of his license to practice law in this State, listing five suggested conditions. We agree with the conditions which track those mentioned above: namely, continued participation in an appropriate support program, and compliance with the post-reinstatement requirements of the Complaint Tribunal. We decline to impose the conditions regarding taking the complete bar examination, obtaining further *934 physical and psychological examinations, and inviting letters of recommendation from judges.
¶ 24. This Court thus directs that Flautt shall be reinstated and that he shall establish and manage his trust/escrow account in compliance with the Tribunal's Judgment. If for any reason he fails to comply with this final condition, he shall be subject to further disciplinary action.

CONCLUSION
¶ 25. We grant David E. Flautt's petition to reinstate his license to practice law and to be readmitted to the Mississippi Bar, subject to the following two conditions: (1) he shall continue to participate in the Mississippi Bar's Lawyers and Judges Assistance Program or the Memphis Bar Association's Lawyers Wellness Group for no less than two years from the date of this opinion; and (2) he shall open a new trust/escrow account for conducting his law practice and shall submit the monthly bank statements for such escrow/trust account to the Mississippi Bar's General Counsel for his review for a period of twelve months following his resumption of the practice of law.
¶ 26. PETITION OF DAVID E. FLAUTT FOR REINSTATEMENT TO THE PRACTICE OF LAW AND READMISSION TO THE MISSISSIPPI BAR, GRANTED SUBJECT TO FLAUTT SATISFYING THE TWO AFOREMENTIONED CONDITIONS.
SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, GRAVES, DICKINSON, AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.


620 S.E.2d 518 (2005)
275 Ga. App. 316
GUILLEN
v.
The STATE.
No. A05A1048.
Court of Appeals of Georgia.
August 31, 2005.
*519 Thomas Lenzer, Robert W. Lenzer, Lenzer & Lenzer, Norcross, for Appellant.
Daniel Porter, District Attorney, Rodney K. Miles, Assistant District Attorney, for Appellee.
MIKELL, Judge.
Ramon Guillen, and his co-defendants, Anthony Lopez and Oscar DeLeon, were indicted by a Gwinnett County grand jury on one count each of possession with intent to distribute a noncontrolled substance, possession of a firearm during the commission of a felony, and criminal attempt to commit armed robbery. Lopez and DeLeon entered guilty pleas prior to the commencement of Guillen's trial.[1] A jury convicted Guillen of both possession charges and acquitted him of criminal attempt to commit armed robbery. Guillen was sentenced to ten years in prison on the possession with intent charge and five years probation to run consecutive to the prison sentence on the firearm charge. On appeal, Guillen raises two errors. He argues that the trial court erred by failing to give a jury charge on the grant of immunity and leniency to a witness and that his trial counsel was ineffective because he failed to request a charge on circumstantial evidence. We affirm.
On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict.[2] We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia.[3] "The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."[4] So viewed, the record shows that a confidential informant informed Gwinnett County Drug Task Force Officer Atwater that an *520 individual named "Juan Carlos," who Atwater later determined was Guillen, wanted to sell four kilograms of cocaine for $22,000 each. After a series of phone calls, Atwater agreed to meet Guillen in a parking lot, after which they would then proceed to a hotel room to complete the sale. Atwater, the informant, and several other officers arrived at the parking lot before Guillen so that they could conduct surveillance of the meeting. Atwater wore a wireless transmitter so that the other officers could monitor his conversation with Guillen.
Guillen arrived at the parking lot with Lopez and DeLeon, who were both seated in the back of Guillen's vehicle. The informant entered the front seat of Guillen's car and after several minutes, Atwater approached the driver's side of the vehicle to talk with Guillen. Atwater testified that he noticed that Guillen and his passengers appeared to be nervous. Atwater asked Guillen if he had the cocaine, and Guillen replied that he had two kilos in the back of his car. Guillen exited the car and showed Atwater what appeared to be a taped brick of cocaine in his trunk. Officer Atwater testified that as Guillen walked to the back of the car, the right pocket of Guillen's jacket moved as if it held a pistol.
Atwater told Guillen that he did not have the money on him, and consequently, Guillen would not allow him to inspect the cocaine. Atwater promised that he would pick up the money and meet Guillen back at the parking lot to close the transaction. Sergeant Darrell Ponder, who supervised the drug transaction, confirmed the content of the conversation between Guillen and Atwater.
After Atwater left the parking lot, the informant received a phone call and was told that Guillen was following them and not to share that information with Atwater. Sergeant Ponder radioed Atwater that Guillen was following him, then contacted uniformed officers and instructed them to initiate a traffic stop of Guillen's vehicle. Officer C.D. McClendon of the Gwinnett County Police Department and other uniformed officers made the traffic stop. Guillen, Lopez, and DeLeon were removed from the car and handcuffed. Lopez had two handguns in the waistband of his pants, and another handgun was located under the front seat of the car. The taped package that Atwater had observed in the truck was two videotapes, not cocaine.
DeLeon testified on behalf of the state that Guillen and Lopez packaged the videotapes and planned to sell them to Atwater as drugs. DeLeon also testified that Guillen gave him a gun that he placed under the seat in Guillen's car.
Guillen testified that he met with Atwater because he wanted to try to sell his car to him; that he had purchased the videotapes to send to his daughter in Honduras; that he opened the trunk of the car to show Atwater where the DVD player was located; that he was simply leaving the parking lot when he was arrested; and that he did not have a weapon or know that there were weapons in the car.
1. In his first enumerated error, Guillen argues that the trial court erred when it refused to give the jury the following written charge on immunity and leniency granted to a witness:
[i]n assessing the credibility of a witness, you may consider any possible motive in testifying, if shown. In that regard you are authorized to consider any possible pending prosecutions, negotiated pleas, grants of immunity or leniency, or similar matters. You alone shall decide the believability of the witnesses.
Guillen maintains that the charge should have been given because it applied directly to DeLeon's testimony. We disagree.
"In order for a refusal to charge to be error, the request must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge."[5] In this case, there was no evidence that DeLeon was offered immunity or leniency in exchange for his testimony. DeLeon testified that he was told that he would be sentenced after his testimony and that he needed to testify truthfully. *521 DeLeon also testified that he was told that if he did not testify truthfully, his plea deal could be withdrawn. Though some plea discussions may have occurred between DeLeon and the state, there is no evidence that the state granted DeLeon immunity or leniency in exchange for his testimony,[6] which evidence was required to support Guillen's proposed charge. Accordingly, we find no error because the evidence did not support the entire charge requested.
Furthermore, the principle of the proposed charge was covered in the general charge.[7] The thrust of Guillen's proposed charge is that the jury should consider that a witness might have a personal interest which influences his testimony. The trial court charged the jury that it was to determine the credibility and believability of witnesses; that in passing upon credibility, it was authorized to consider a witness's interest in the case; and that it could assess the witness's personal credibility.
2. Guillen contends that his trial counsel was ineffective because he failed to request a charge on circumstantial evidence, which failure prejudiced Guillen's defense.
To prevail on a claim of ineffective assistance of counsel, it must be shown both that counsel's performance was deficient and that but for this deficiency the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Failure to satisfy either prong of the Strickland standard is fatal to an ineffective assistance claim. In addition, a strong presumption exists that trial counsel performed within the wide range of reasonable professional assistance. The trial court's determination that [Guillen] was afforded effective assistance of counsel will not be reversed on appeal unless it was clearly erroneous.[8]
The charge at issue is based on OCGA § 24-4-6, which provides that "[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." We have previously held that "omitting [this] charge ... is not harmful or erroneous as a matter of law when some direct evidence is presented and the jury receives a proper instruction on reasonable doubt, as was done here."[9]
Officer Atwater and his supervisor, as well as DeLeon, provided direct evidence of the drug deal, and DeLeon testified that Guillen gave him a gun. The trial court adequately charged the jury on reasonable doubt. Therefore, the omission of the charge on circumstantial evidence was not erroneous, and trial counsel's performance, therefore, was not deficient because he failed to request such an instruction. Moreover, "[g]iven the overwhelming evidence of [Guillen's] guilt, he cannot show a reasonable probability that the jury would have had a reasonable doubt respecting his guilt, if his counsel had requested the charge."[10] Therefore, the trial court's finding that trial counsel was effective was not clearly erroneous.
Judgment affirmed.
ANDREWS, P.J., and PHIPPS, J., concur.
NOTES
[1]  Lopez entered an Alford plea and received a sentence of fifteen years, seven of which would be served in confinement. DeLeon had not been sentenced when the trial began.
[2]  Paul v. State, 231 Ga.App. 528, 499 S.E.2d 914 (1998).
[3]  443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[4]  (Punctuation and footnote omitted.) Christopher v. State, 262 Ga.App. 257, 585 S.E.2d 107 (2003).
[5]  (Citation and punctuation omitted.) Hall v. State, 241 Ga.App. 454, 460(1), 525 S.E.2d 759 (1999). See also Lewis v. State, 196 Ga. 755, 760(3), 27 S.E.2d 659 (1943).
[6]  See Monsalve v. State, 271 Ga. 523, 525-526(3), 519 S.E.2d 915 (1999) (no error in trial court's refusal to give proposed charge on immunity and leniency where the defendant testified that he had been promised nothing in exchange for his testimony, and that he had not been granted any immunity or leniency, or threatened with any harm, in relation to his testimony). See also Harris v. State, 274 Ga. 422, 426(6)(a), 554 S.E.2d 458 (2001); Epps v. State, 262 Ga.App. 113, 117(5), 584 S.E.2d 701 (2003).
[7]  Hall, supra.
[8]  (Citations omitted.) Turner v. State, 245 Ga. App. 294, 295(4), 536 S.E.2d 814 (2000).
[9]  (Citation omitted.) Id. at 298(4)(g), 536 S.E.2d 814.
[10]  Landers v. State, 270 Ga. 189, 191(4), 508 S.E.2d 637 (1998).