ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 96-00116)
Before: SCIRICA and NYGAARD, Circuit Judges, and DEBEVOISE, District Judge *fn*
(Opinion filed September 25, 1997)
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. Section(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. Section(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.
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 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. *fn1 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. Section(s) 1344(1) and one count of interstate transportation of stolen checks under 18 U.S.C. Section(s) 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 enhancement under U.S.S.G. Section(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. Section(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.
On appeal, Monostra raises two claims. First, he contends that he was improperly indicted under 18 U.S.C. Section(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.
The federal bank fraud ...