On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Criminal No. 93-00085-1).
Before: Stapleton, Hutchinson and Garth, Circuit Judges.
The question we must answer on this appeal is whether a sentence for money laundering under § 2S1.1 of the Sentencing Guidelines should be based on the total value of the funds involved in that offense or should it be based on the actual loss sustained by the victims. We reject Thompson's "actual loss" argument which is based on the measurement of the sentence for offenses involving fraud and deceit. See U.S.S.G. § 2F1.1; United States v. Kopp, 951 F.2d 521 (3d Cir. 1991). We hold instead that in imposing a sentence for money laundering pursuant to U.S.S.G. § 2S1.1, the district court should determine its sentence based on the total value of the funds involved.
Appellant Roscoe Thompson ("Thompson") appeals the sentence imposed after he pled guilty to the charges of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i)*fn1 and conspiracy to defraud a financial institution, 18 U.S.C.
§ 1344,*fn2 in violation of 18 U.S.C. § 371.*fn3 We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2). On appeal, Thompson argues that the district court's calculation of his sentence under U.S.S.G. § 2S1.1(b)(2) is inconsistent with this Court's holding in United States v. Kopp, 951 F.2d 521 (3d Cir. 1991).
The essential facts of this case are not in dispute. Thompson, Victor Thompson ("Victor") and co-defendant Benjamin Garland ("Garland") together intercepted and diverted funds that investors mailed to the New York securities firm of J.P. Morgan Securities, Inc. ("J.P. Morgan"). Their plan was executed in the following manner. During the period from July 18, 1991 through December 2, 1991, Victor, who was a J.P. Morgan employee, intercepted thirty-four checks sent to J.P. Morgan by various people throughout the United States. Victor forwarded these checks to Garland in Tarpon Springs, Florida, who mailed the stolen checks to the appellant Thompson in Pittsburgh, Pennsylvania.
On October 9, 1991, Thompson opened an account at Pittsburgh National Bank (now PNC Bank) under the fictitious business name of J.P.M. Utility Auditors, Inc. ("JPM"). Thompson used the alias of Rudolph Sinclair to create the account. On the same day Thompson obtained a telephone answering service in JPM's name.
Between October 10, 1991, and December 6, 1991, Thompson deposited thirty-four stolen checks with a total value of $352,220.50 into JPM's checking account. The conspirators withdrew the funds by wire transfers, checks and automatic teller machine transactions. By means of these withdrawals, Thompson and Garland diverted the stolen funds to a series of other accounts with PNC Bank, Barnett Bank, Citibank and Charles Schwab, a discount brokerage firm.
Investigators from PNC Bank became aware of these illicit activities in January, 1992. PNC froze the funds that remained in the accounts and thereby prevented the withdrawal of $99,561.27 of the $352,220.50 that Thompson had stolen and deposited. These funds were eventually returned to the J.P. Morgan investors who were the victims of the scheme. Of the stolen funds, $252,659.23 was not recovered.
On April 15, 1993, a federal grand jury returned an eighty-two count indictment against Thompson and Garland.*fn4 Under an agreement with the Government, Thompson pled guilty to Count One (conspiracy to defraud) and Count Fifty-One (money laundering) of the indictment. Thompson acknowledged committing the crimes charged in the remaining counts of the indictment, and stipulated that the conduct alleged in the entire indictment could be considered by the district court ...