United States v. Monostra ( 1997 )

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
9-25-1997
United States v. Monostra
Precedential or Non-Precedential:
Docket
96-2050
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Filed September 25, 1997
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 96-2050
UNITED STATES OF AMERICA
v.
ALFRED MONOSTRA, III,
Appellant
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 96-00116)
Argued on July 23, 1997
Before: SCIRICA and NYGAARD, Circuit Judges, and
DEBEVOISE, District Judge*
(Opinion filed September 25, 1997)
Anita D. Eve, Esq. (Argued)
Office of the U.S. Attorney
615 Chestnut Street
Suite 1250
Philadelphia, Pa. 19106
Counsel for Appellee
_________________________________________________________________
*The Honorable Dickinson R. Debevoise, Senior District Judge for the
District of New Jersey, sitting by designation.
Thomas A. Bergstrom, Esq.
(Argued)
138 Davis Road
Malvern, Pa. 19355
Counsel for Appellant
OPINION OF THE COURT
NYGAARD, Circuit Judge:
Alfred Monostra, III, appeals his conviction on one count
of bank fraud, arguing that he was indicted under the
wrong subsection of 18 U.S.C. S 1344. Because we find that
indictment under subsection (1) of the statute was not
erroneous, we will affirm the conviction.
Monostra also challenges the addition of two points to the
calculation of his sentence under U.S.S.G. S 3A1.1, because
the president of the company he victimized was visually
impaired. We agree that the district court erred by imposing
the "vulnerable victim" enhancement, for the reason that
the record lacks any evidence that the president's visual
impairment facilitated Monostra's scheme. Consequently,
we will vacate the sentence. On remand, the district court
may conduct further factfinding to determine whether the
company itself was a "vulnerable victim" or if Monostra did,
in fact, take advantage of Landis' impairment.
I. FACTS AND PROCEDURE
Diverse Technical Lines, Inc., is a small, closely-held
corporation that primarily sells group health insurance
plans to other small businesses. Diverse Technical Lines
administers the plans by billing the customers, collecting
the premiums and forwarding the premiums to the
insurance providers. Diverse Technical Lines' president,
David T. Landis, decided that the company needed an
individual with an accounting background to run the
finance department, which collected and dispersed the
premiums. He hired Alfred Monostra, a young man with a
2
college degree in business administration who claimed to
have earned a master's degree as well.
Soon after assuming his duties at Diverse Technical
Lines, Monostra embarked on a scheme to steal money
from the company. Diverse Technical Lines maintained two
corporate accounts with Cheltenham Bank and one with
Core States Financial Corporation.1 Both institutions were
FDIC insured. Although Landis and company vice-president
Michael J. Foley were the only individuals with signature
authority over the bank accounts, the checkbooks were
kept by the bookkeeper, who sat next to Monostra, and
Monostra was authorized to prepare some checks for
signature by Landis and Foley. Between March 1993 and
September 1994, Monostra wrote fourteen checks on
Diverse Technical Lines' accounts with Cheltenham and
Core States for amounts totaling $657,160.69, and forged
Landis' signature on them. The checks were made out to
"ABM Enterprises," a fictitious entity, and deposited into
Monostra's personal bank account at Meridian Bank.
Monostra avoided detection until September 1994 by
removing the canceled checks when they returned to
Diverse Technical Lines, writing "VOID" on the
corresponding check stubs, and delaying the payment of
premiums to the insurance providers so that those funds
would be available to cover the forged checks. When the
scheme was eventually uncovered by an alert employee in
the finance department, Monostra confessed to Landis and
Foley that he had stolen the money, and returned
$239,000.
A grand jury indicted Monostra on one count of bank
fraud under 18 U.S.C. S 1344(1) and one count of interstate
transportation of stolen checks under 18 U.S.C. SS 2 &
2314. The United States subsequently dropped the second
charge. Monostra waived his right to a trial by jury. By
order of June 24, 1996, Monostra was found guilty of bank
fraud. A motion for judgment of acquittal was denied on the
same day.
The presentence investigation report calculated a total
offense level of seventeen, including a two-point
_________________________________________________________________
1. Core States acquired Cheltenham Bank in June 1994.
3
enhancement under U.S.S.G. S 3B1.3 for abusing a position
of trust, and a two-point reduction for acceptance of
responsibility. The court corrected a mistake in the
calculation of amount of money lost, thereby increasing the
total offense level by one point. The court also added two
points under U.S.S.G. S 3A1.1, finding that Landis was an
unusually vulnerable victim because of his visual
impairment. Monostra was sentenced to thirty-six months'
imprisonment, five years' supervised release, and he was
required to make restitution to Diverse Technical Lines in
the amount of $307,000.
II. LEGAL ANALYSIS
On appeal, Monostra raises two claims. First, he
contends that he was improperly indicted under 18 U.S.C.
S 1344(1). Second, he argues that the record does not
support the two-point enhancement of his sentence for
exploiting a vulnerable victim. Both issues were preserved
below, and we consider each in turn.
A. Bank Fraud
The federal bank fraud statute states:
Whoever knowingly executes, or attempts to execute, a
scheme or artifice --
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits,
assets, securities, or other property owned by, or
under the custody or control of, a financial
institution, by means of false or fraudulent
pretenses, representations, or promises;
shall be fined not more than $1,000,000 or imprisoned
not more than 30 years, or both.
18 U.S.C. S 1344. Monostra was indicted and convicted
under 18 U.S.C. S 1344(1). This was an error, Monostra
argues, because he never intended to defraud Cheltenham
or Core States of their money or property. Rather, Monostra
asserts that he intended to defraud Diverse Technical Lines
of money it had in its bank accounts, and that the deposits
4
in those accounts were sufficient to cover the checks he
forged. If anything, Monostra urges, he is only guilty of
violating 18 U.S.C. S 1344(2), which prohibits schemes to
obtain "moneys, funds, credits, assets, securities or other
property . . . under the custody or control of[ ] a financial
institution."
Monostra assumes that the two subsections of the
statute are entirely disjunctive, but analysis of the text as
well as the legislative history indicates otherwise. For
instance, both subsections prohibit schemes or artifices
fraudulently to obtain money or property owned by a
financial institution, for as the Supreme Court has stated,
the words "to defraud", used in S 1344(1), "commonly refer
``to wronging one in his property rights.' " McNally v. United
States, 483 U.S. 350, 359, 107 S. Ct. 2875, 2881 (1987)
(quoting Hammerschmidt v. United States, 265 U.S. 182,
188, 44 S. Ct. 511, 512 (1924)). Similarly, while not every
scheme to defraud will be accomplished with the aid of
"false or fraudulent pretenses, representations, or
promises," United States v. Schwartz, 899 F.2d 243, 246
(3d Cir. 1990), as prohibited by S 1344(2), the use of such
devices may certainly constitute a scheme to defraud under
S 1344(1) as well, since fraud is a broad concept that "is
measured in a particular case by determining whether the
scheme demonstrated a departure from fundamental
honesty, moral uprightness, or fair play and candid
dealings in the general life of the community," United States
v. Goldblatt, 813 F.2d 619, 624 (3d Cir. 1987).
The legislative history of the statute also indicates that
subsection (2) may be regarded in part as a clarification of
subsection (1). The authors of the bank fraud statute
modeled it after the wire and mail fraud statutes, 18 U.S.C.
SS 1341 & 1343. S. Rep. No. 98-225, at 378 (1983),
reprinted in 1984 U.S.C.C.A.N. 3182, 3519. As the
Judiciary Committee noted, "Like these existing fraud
statutes, the proposed bank fraud offense proscribes the
conduct of executing or attempting to execute ``a scheme or
artifice to defraud' or to take the property of another ``by
means of false or fraudulent pretenses, representations, or
promises.' " Id.; cf. 18 U.S.C. S 1341 ("Whoever, having
devised or intending to devise any scheme or artifice to
5
defraud, or for obtaining money or property by means of
false or fraudulent pretenses, representations, or promises
. . . ."); 18 U.S.C. S 1343 (same). Since the bank fraud
statute drew important phrasing from the mail and wire
fraud statutes, the history of the latter statutes is relevant
to interpreting the act before us.
In McNally v. United States, the Supreme Court
scrutinized the legislative history of 18 U.S.C. S 1341. It
noted that as first enacted in 1872, the mail fraud statute
merely contained a general proscription against "any
scheme or artifice to defraud." 483 U.S. at 356, 107 S. Ct.
at 2879. Then, in 1909, Congress amended the statute by
adding the phrase "or for obtaining money or property by
means of false or fraudulent pretenses, representations, or
promises" after the original phrase "any scheme or artifice
to defraud." Id. at 357, 107 S. Ct. at 2880 (citing Act of
Mar. 4, 1909, ch. 321, S 215, 35 Stat. 1130). The McNally
court concluded that the second phrase was a codification
of intervening Supreme Court precedent2 added "simply [to
make] it unmistakable that the statute reached false
promises and misrepresentations as to the future as well as
other frauds involving money or property." Id. at 359, 107
S. Ct. at 2881. Thus, when Congress copied the
phraseology of the mail and wire fraud statutes into the
bank fraud statute, it adopted two provisions that never
were intended to be mutually exclusive.
Nevertheless, Congress did not adopt the wording of the
mail and wire fraud statutes in their entirety. Specifically,
the mail and wire fraud statutes do not penalize the
victimization of specific persons; rather, they are directed at
the instrumentalities of fraud. In contrast, the bank fraud
statute was expressly "designed to provide an effective
vehicle for the prosecution of frauds in which the victims
are financial institutions that are federally created,
controlled or insured." S. Rep. No. 98-225, at 377, 1984
U.S.C.C.A.N. at 3517. The two subsections of the statute
_________________________________________________________________
2. Specifically, the case of Durland v. United States, 161 U.S. 306, 16
S. Ct. 508 (1896) (holding the statute must be read to include
"everything designed to defraud by representations as to the past or
present, or suggestions or promises as to the future").
6
express this in different terms: S 1344(1) prohibits schemes
"to defraud a financial institution," while S 1344(2) prohibits
schemes to obtain money or property "owned by, or under
the custody or control of, a financial institution." The
"custody or control" language is not taken from the mail or
wire fraud statutes. Monostra would have us readS 1344(1)
to pertain exclusively to money or property owned by a
financial institution, and read S 1344(2) more expansively to
include as well money and property merely in the custody
and control of the financial institution.
Monostra's interpretation is not implausible. However,
consideration of the bank fraud statute's legislative history
suggests that, in this instance, too, subsection (2) may have
been intended to clarify the scope of S 1344. The Judiciary
Committee report does not explain why the statute contains
two subsections or the differences between them. S. Rep.
No. 98-225, at 377-79, 1984 U.S.C.C.A.N. at 3517-19.
Instead, the report focusses exclusively on the need for a
federal statute proscribing bank fraud generally. Id.Previously, such crimes had been federally prosecuted
under statutes proscribing mail or wire fraud, larceny or
false statement. Id. at 377, 1984 U.S.C.C.A.N. at 3517-18
(citing 18 U.S.C. SS 1014, 1341, 1343, 2113). However, the
utility of these statutes had been judicially circumscribed,
creating "serious gaps" in federal jurisdiction over frauds
against financial institutions. Id. Given Congress' aim of
creating a statute that would empower federal prosecutors
to pursue all forms of bank fraud, it is evident that
S 1344(2) was mainly intended to underscore the breadth of
the statute's reach.
Even assuming that Monostra is correct that the phrase
"to defraud a financial institution" does not encompass
schemes to obtain money or property that are merely in a
financial institution's custody or control, Monostra
misconstrues banking law when he argues that the money
he stole was his employer's property in the custody of
Cheltenham and Core States. It is a fundamental principle
of banking law that money deposited with a bank becomes
the bank's property. United States v. Henry, 29 F.3d 112,
114 (3d Cir. 1994) (citing, inter alia, In re Prudential Trust
Co.'s Assignment, 72 A. 798, 799 (Pa. 1909)). When Diverse
7
Technical Lines deposited funds in its accounts with
Cheltenham and Core States, those banks did not become
the custodians of that money; rather, Diverse Technical
Lines became a creditor of Cheltenham and Core States in
the amount of the deposits. See In re Prudential Trust Co.'s
Assignment, 72 A. at 799; Triffin v. Interstate Printing Co.,
515 A.2d 956, 958 (Pa. Super. Ct. 1986). By depositing
forged checks into his personal bank account, Monostra
triggered a transfer of assets that were the property of
Cheltenham and Core States. In the most direct sense,
Monostra was defrauding these banks of money and
property.
The fact that Core States3 may succeed in passing the
loss on to Diverse Technical Lines, by subtracting the
stolen amounts from its debt to the company, is not
dispositive. As we have noted in the past, the government
need not show that the banks actually incurred a loss in
order to prove a scheme or artifice to defraud. Goldblatt,
813 F.2d at 624 (citations omitted). Exposure to potential
loss is sufficient. In this instance, Monostra not only
deprived the banks of their property by forging checks, but
as the district court noted, the banks may ultimately bear
the liability for the loss under 13 Pa. Cons. Stat. Ann. S
3420, if Diverse Technical Lines can show that the banks
did not exercise ordinary care in paying the checks under
13 Pa. Cons. Stat. Ann. S 3405(b). The record in this case
indicates that Diverse Technical Lines has, in fact, brought
suit against Core States for honoring the forged checks.
In summary, we hold that Monostra was correctly
indicted and convicted under 18 U.S.C. S 1344(1) because
he defrauded Cheltenham and Core States of their property
by depositing forged checks into his personal bank account
at Meridian, thereby causing a transfer of property owned
by Cheltenham and Core States to Meridian.
B. Vulnerable Victim Enhancement
Monostra argues that the district court erred in adding
_________________________________________________________________
3. As noted supra, Core States has purchased Cheltenham and so
succeeded to its interests.
8
two points to his sentence for exploiting a vulnerable victim
under U.S.S.G. S 3A1.1(b), at least insofar as the
enhancement was based on the visual impairment of
Diverse Technical Lines president Landis, because the
record lacks evidence that Landis' impairment contributed
to the success of Monostra's scheme. We agree.
This appeal presents questions of law and fact. On
review, the trial court's findings of fact are measured by the
clearly erroneous standard, while we give plenary
consideration to the court's construction of the guidelines.
United States v. Hillstrom, 988 F.2d 448, 450 (3d Cir.
1993).
Monostra concedes that it is not entirely clear why the
district court applied the vulnerable victim enhancement.
At the sentencing hearing, the government argued that the
enhancement should be given because Monostra had
exploited a small and vulnerable company that nearly went
under because it was not insured against the loss Monostra
caused. Portions of the record suggest that the district
court rejected this argument. In particular, the court said,
[W]hile this is a small business, I don't know of
businesses who stay in business who can't afford the
insurance. That is an expense just like heat, light and
other things and there were no safeguards in there. I
am not so much impressed with that . . . . It's like a
small taxi cab running around without liability
insurance. Either park the car or get the insurance.
That's my view.
On the other hand, when announcing that the vulnerable
victim provision would be applied, the court noted that
"your co[mp]troller is . . . very trusted, usually the top
financial person in a small business." Therefore, the court
may have found the enhancement was appropriate because
Diverse Technical Lines' size made it particularly
vulnerable. In light of this uncertainty, we will remand the
matter to the district court for further factfinding on the
issue of whether Diverse Technical Lines was particularly
susceptible to Monostra's criminal conduct, or rendered
susceptible by Landis' visual impairment. We now append
a few comments on the applicability of S 3A1.1 when the
9
vulnerable victim is an institution or business entity rather
than a natural person.
The sole charge on which Monostra was tried and
convicted was the bank fraud count discussed supra.
Consequently, Diverse Technical Lines was not the victim of
the offense of conviction. However, in United States v. Cruz,
106 F.3d 1134, 1136-37 (3d Cir. 1997), we held that the
drafters of the Sentencing Guidelines did not intend to limit
the application of S 3A1.1(b) to situations in which the
vulnerable person was the victim of the offense of
conviction. Rather, trial courts may look to all the conduct
underlying an offense, using S 1B1.3 as a guide. Id. at
1137.
This case differs from the usual case where a third
party's vulnerability has been exploited. In all of the
instances cited by the government, the victim of the offense
of conviction was an agency or business, while the
vulnerable victim was a natural person. United States v.
Haggard, 41 F.3d 1320 (9th Cir. 1994) (imprisoned felon
who victimized family of missing child by claiming to know
the child's whereabouts convicted of perjury and
obstruction of justice); United States v. Echevarria, 33 F.3d
175 (2d Cir. 1994) (insurers defrauded by individual who
posed as a medical doctor and treated patients); United
States v. Lee, 973 F.2d 832 (10th Cir. 1992) (sentence of
bank employee convicted of embezzlement could have been
enhanced if evidence showed that the customers whose
checks she stole were particularly vulnerable); United States
v. Yount, 960 F.2d 955 (11th Cir. 1992) (sentence of bank
vice-president could be enhanced for exploiting
incapacitated individuals although the bank had
reimbursed them); United States v. Bachynsky, 949 F.2d
722 (5th Cir. 1991) (insurers and government defrauded by
physician who submitted false claims); United States v.
Callaway, 943 F.2d 29 (8th Cir. 1991) (Social Security
Administration defrauded of benefits by representative
payee for disabled infant). Similarly, the commentary to
S 3A1.1(b) only provides examples of vulnerable victims who
are natural persons. U.S.S.G. S 3A1.1 application note 2
(1995) ("The adjustment would apply, for example, in a
fraud case where the defendant marketed an ineffective
10
cancer cure or in a robbery where the defendant selected a
handicapped victim.").
Nevertheless, the Sentencing Guidelines do not preclude
the application of the vulnerable victim enhancement in
instances when the victim was an entity rather than a
natural person. The text of S 3A1.1(b) allows the
enhancement "[i]f the defendant knew or should have
known that a victim of the offense was unusually
vulnerable due to age, physical or mental condition, or that
a victim was otherwise particularly susceptible to the
criminal conduct." While the first clause refers to the
characteristics of natural persons, the second clause can
encompass a broader range of circumstances, including
those pertinent to business organizations.
In our recent Cruz decision, we declared that the purpose
of the vulnerable victim enhancement is "to acknowledge
that, while most crimes are committed for other motives, in
many instances defendants know or should know of their
victim's particular vulnerability and are therefore more
blameworthy for knowingly or even negligently harming
them." 106 F.3d at 1139. A defendant is no less
blameworthy for having expressed his evil intentions by
exploiting the particular vulnerabilities of a small business,
than another would be for having exploited the
vulnerabilities of a natural person. For this reason, courts
may apply S 3A1.1(b) in instances where the defendant has
exploited the particular susceptibility of a business or
entity. We express no opinion on the applicability of S 3A1.1
in this instance, but leave that to the discretion of the
district court on remand.
We now turn to a fact on which the district court clearly
did rely in applying the vulnerable victim enhancement:
Landis' visual impairment. At the sentencing hearing, the
district judge said that while he was not so impressed by
Diverse Technical Lines' lack of insurance,
I am impressed with the idea that this person comes in
as co[mp]troller and he says he has a master's degree
which . . . he does not have and the person for whom
he works and who has direct responsibility that flows
to him is blind . . . . I am impressed with stealing from
11
a blind man. I think most people think that's a little bit
worse than stealing from [a] person who is physically
able.
On appeal, Monostra argues that the district court erred
both in finding that Landis was "blind" and in applying the
enhancement when there was no showing that Landis'
alleged impairment contributed to the success of
Monostra's scheme to defraud.
Although the record contains scant evidence on the
extent of Landis' impairment, we are satisfied that the
district court did not clearly err in finding that Landis was
"blind." The court had two opportunities to observe Landis:
when he testified at trial and at the sentencing hearing.
Although Landis had enough visual capacity to testify at
trial that his signature had been forged on the checks
entered into evidence, he needed to use a pen light to view
the checks. Having observed this and Landis' demeanor
generally, the court was in the best position to determine
whether Landis was so impaired that he might be
particularly susceptible to Monostra's criminal conduct.
Monostra argues that even if Landis had impaired vision,
the vulnerable victim enhancement may not be applied
absent a showing that Monostra targeted Landis or that
Landis' impairment contributed to the success of
Monostra's scheme. Monostra is correct that there is no
evidence that he targeted Diverse Technical Lines because
of Landis' poor vision. However, as we recently held in Cruz,
S 3A1.1 does not require that the defendant consciously
have targeted the victim because of the latter's vulnerability
or susceptibility. 106 F.3d at 1137, 1139. The
enhancement may be applied when the defendant knew or
should have known of the victim's susceptibility. Id. at
1139. Monostra worked in close proximity to Landis and
certainly should have known of Landis' visual impairment.
Nevertheless, we agree that the enhancement may not be
applied absent a showing that the victim's vulnerability or
susceptibility facilitated the defendant's crime in some
manner. Webster's Ninth Collegiate Dictionary (1988)
defines the word "susceptible" as "open, subject or
unresistant to some stimulus, influence or agency." The
12
word "vulnerable" is defined as "open to attack or damage."
Id. Both definitions imply that the weakness of the object
contributes to the successful operation of the subject.
Thus, the use of the words "susceptible" and"vulnerable" in
S 3A1.1 indicates that the enhancement is to be applied
when the defendant has taken advantage of the victim's
weakness.
This understanding is implicit in our previous
discussions of S 3A1.1. For instance, in United States v.
Seligsohn, 981 F.2d 1418 (3d Cir. 1992), we affirmed the
application of the enhancement, finding that "the
defendant's consumer fraud scheme depended in many
instances on the inability of elderly homeowners to verify
the need to repair or replace [their] roofs," id. at 1426.
Similarly, in United States v. Astorri, 923 F.2d 1052,
1054-55 (3d Cir. 1991), we affirmed the district court's
finding that two of the victims were particularly susceptible
to the defendant's persistent requests for funds because
they were the parents of the defendant's girlfriend, whom
he entirely supported. In Cruz, the defendant accomplished
a carjacking by placing a semi-automatic gun to the head
of a twelve-year-old passenger. 106 F.3d at 1135.
Cases outside this circuit which the government has
cited in arguing that S 3A1.1 may be applied when the
vulnerable person was not the victim of the offense of
conviction likewise underscore the need for a showing that
the criminal conduct exploited the victim's particular
vulnerability or susceptibility. The case most directly on
point is Lee. There the court found that the application of
S 3A1.1 was clearly erroneous where there was little
particularized evidence that the elderly customers whose
deposits were embezzled had been rendered unusually
vulnerable by their age: the probation officer who testified
at the hearing was unable to provide any evidence that the
customers were physically or mentally impaired due to their
age. 973 F.2d at 834-35. The court of appeals concluded
that "there should be a nexus between the victim's
vulnerability and the crime's ultimate success" before
S 3A1.1 may be applied. Id. at 834 (citing United States v.
Moree, 897 F.2d 1329, 1335-36 (5th Cir. 1990)).
13
The Lee court contrasted its facts with those of the Yount
case in the Eleventh Circuit. There, the court found that
the customers were very old, infirm and incapable of
managing their own financial affairs, 960 F.2d at 957,
which increased the chances that the defendant's thefts
from their trust funds would not be detected, see id. at
958.
Both the Second and Fifth Circuits have had occasion to
consider cases of insurance fraud. In Echevarria , the
defendant posed as a physician, treated patients and
submitted claims to insurers. 33 F.3d at 180. In
Bachynsky, a physician submitted false diagnoses to
insurance companies and the Department of Defense in
order to obtain payment for treatment of conditions not
covered by the patients' policies. 949 F.2d at 735. The
courts in both instances found that the defendants had
exploited their patients' need for treatment to carry out
their frauds. 33 F.3d at 180-81; 949 F.2d at 735.
In all of these cases, the defendant took advantage of the
victim's vulnerability to carry out the criminal scheme. The
enhancement is applied not because the victim draws
sympathy from us because of the infirmity, and we simply
wish to express extra odium for the act. It is also because
the infirmity rendered the victim susceptible to the crime
committed upon him. Regardless of whether the defendant
deliberately targeted the victims for their vulnerability, that
vulnerability must to some degree contribute to the success
of the defendant's scheme.
By contrast, the record here is devoid of evidence
suggesting that Landis' visual impairment facilitated
Monostra's scheme to defraud the banks and Diverse
Technical Lines. First, it is uncontroverted that Monostra
did not present the stolen checks to Landis for signature, in
the hope that Landis would not know what he was signing.
All the evidence suggests that Monostra simply signed
Landis' name without authorization. Second, there is no
indication in the record that Landis reviewed Diverse
Technical Lines' canceled checks or financial records, or
that Landis would have done so if not for his impairment.
Diverse Technical Lines vice-president Foley testified that
he was well acquainted with Landis' signature, yet the
14
company did not have Foley review the canceled checks or
other financial records. Consequently, it does not appear
that Landis' impairment enabled Monostra to escape
detection longer than he otherwise would have.
Third, in imposing the enhancement, the district court
commented on the fact that Monostra had lied about
having earned a master's degree in business
administration. Here, too, the evidence is lacking that the
lie went undiscovered because of Landis' visual impairment.
In fact, Landis testified that he had a private investigator
look into Monostra's background before Monostra was
hired. Monostra's lie succeeded because the private
investigator slipped up. It is doubtful that Landis could
have determined that the resume contained false
information if he had 20/20 vision. Moreover, Foley, who
did not have a visual impairment, testified that he assisted
Landis with the interviews and could presumably have
compensated for any problems Landis experienced due to
his vision.
Finally, the record does not indicate that Diverse
Technical Lines hired Monostra because of Landis'
impairment. Landis testified that he had decided to hire
Monostra because he wanted someone with an accounting
background to run the company's finance department. The
record does not suggest that Landis would have run the
finance department if not for his impairment.
Thus, a review of the evidence adduced at trial and the
sentencing hearing indicates that Monostra did not target
Diverse Technical Lines due to Landis' impairment, nor did
the impairment facilitate Monostra's scheme in any respect.
Enhancement of the sentence is only appropriate where a
victim was "particularly susceptible" to the crime that
occurred. There is nothing in this record to suggest that
Landis' visual impairment made him or Diverse Technical
Lines particularly susceptible to Monostra's embezzling.
Consequently, the district court clearly erred to the extent
it imposed the two-point enhancement under S 3A1.1 on
account of Landis' visual impairment.
III. CONCLUSION
We will affirm Monostra's conviction under 18 U.S.C. S
1344(1), but vacate his sentence and remand for
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resentencing. The district court may consider any evidence
bearing on the particular susceptibility of Diverse Technical
Lines when determining whether to reimpose the vulnerable
victim enhancement. It may also consider any further
evidence the government may have which would show that
Landis' visual impairment did, in fact render Diverse
susceptible, or otherwise facilitate Monostra's crime.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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