United States v. Barringer, No. 20-4584 (4th Cir. 2022)
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Barringer was the Executive Vice President and a Board member of J&R, a Virginia manufacturing company. By 2014, J&R was delinquent on filing and paying its 941 (employee withholding) taxes. Fearing personal liability, Barringer submitted a Hardship Withdrawal Form requesting $311,859.04 from her 401(k) account “[t]o prevent eviction or ... foreclosure of the mortgage on [her] principal residence.” Barringer deposited the funds into J&R's account to pay the delinquent taxes. Barringer’s mortgage balance was approximately $200,000 at the time; her payments were not delinquent. In 2016, J&R was again behind on its 941 taxes. Barringer requested a final distribution from her 401(k) account, falsely citing the end of her employment with J&R. Barringer again deposited the funds, plus some of her personal savings, into the J&R account. Instead of paying delinquent taxes, Barringer paid herself and vendors. After providing misinformation to federal agents, Barringer was convicted of willfully failing to collect and truthfully account for and pay taxes, 26 U.S.C. 7202, and making materially false statements to federal agents, 18 U.S.C. 1001(a)(2).
The Fourth Circuit affirmed the convictions and 36-month sentence. Any error in the denial of Barringer’s pretrial motion to dismiss the wire fraud counts was harmless because the court subsequently granted her motion for a judgment of acquittal on those charges. Barringer’s false statements to investigators were “material to a matter within the jurisdiction of the agency.” The court upheld an abuse-of-trust enhancement under U.S.S.G. 3B1.
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