U.S. v. Viemont

• Decision Date: 31 July 1996
• Docket Number: No. 96-1149,96-1149
• Citation: 91 F.3d 946
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald J. VIEMONT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 946

91 F.3d 946

UNITED STATES of America, Plaintiff-Appellee, v. Ronald J. VIEMONT, Defendant-Appellant.

No. 96-1149.

United States Court of Appeals Seventh Circuit.

Argued May 13, 1996.

Decided July 31, 1996.

Lawrence S. Beaumont (argued), Office of the United States Attorney, Urbana Division, Urbana, IL, for Plaintiff-Appellee.

Richard H. Parsons (argued), Peoria, IL, for Defendant-Appellant.

Before COFFEY, MANION, and ROVNER, Circuit Judges.

COFFEY, Circuit Judge.

Appellant Ronald J. Viemont pled guilty to one count of wire fraud, 18 U.S.C. § 1343. He was sentenced to 15 months' imprisonment and ordered to pay a $4,000 fine and $200,000 in restitution. On appeal, Viemont maintains the district court failed to properly consider the factors in 18 U.S.C. § 3664 in setting the amount of restitution and that his sentence was improperly increased based upon the court's finding that he participated in "more than minimal planning" as reflected in U.S.S.G. § 2F1.1(b)(2). We affirm.

I. BACKGROUND

Appellant Viemont was an investment consultant and operated a firm called R.J. Viemont and Company in Peoria, Illinois. In that capacity, he had the ability, with authorization, to order expenditures, investments, and the transfer of funds entrusted to him on behalf of his clients. Among his clients were the Policemen's Pension Fund for the City of Danville, Illinois ("PPF-Danville"), the Firefighters' Pension Fund for the City of Danville, Illinois ("FPF-Danville"), the Policemen's Pension Fund for the City of Taylorville, Illinois ("PPF-Taylorville"), and the 579 Credit Union located in Danville, Illinois ("Credit Union").

Viemont caused the funds from PPF-Danville and FPF-Danville to be invested with an income portfolio management firm called Investment Management and Research of St. Petersburg, Florida ("Investment Management"). Viemont also arranged for funds from PPF-Taylorville and the Credit Union to be invested with an income portfolio management firm called Multi-Financial Securities Corporation of Englewood, California ("Multi-Financial").

On August 19, 1992, Viemont forged the Danville City Treasurer's signature on two documents that he prepared which directed Investment Management to wire transfer $100,000 from PPF-Danville and $100,000 from FPF-Danville into the Murdock Mining Company's account at the First Midwest Bank of Danville. The transactions were conducted without the required authorization of the Danville City Treasurer. The Murdock Mining Company account had no connection to either pension fund.

From September 1992 through April 1993, Viemont mailed a monthly investment report to the Danville City Treasurer, and these reports failed to reflect the withdrawal of the $200,000 from the pension funds. As soon as the Danville City Treasurer became aware of the unauthorized money transfers, she called the matter to Viemont's attention. ¹ Viemont responded with a fictitious story that the transfers were merely between the pension funds, and that she had no reason to be concerned. When the Danville City Treasurer attempted to balance the two pension funds and discovered they were short by $100,000 each, Viemont stated that he would take care of the matter.

When the annual year-end audit disclosed the missing money, Viemont told the Danville City Treasurer that he forgot to mention the purchase of two $100,000 certificates of deposit, one for each pension fund. The Danville City Treasurer repeatedly attempted to obtain copies of the CDs and written documentation of the purchases from Viemont, but was unsuccessful, and later discovered that no CDs had been purchased for the funds.

On July 29, 1993, Viemont prepared two more documents addressed to Multi-Financial directing a transfer of $100,000 from PPF-Taylorville and $100,000 from the Credit Union to Palmer American National Bank in Danville, Illinois ("Palmer Bank"). Viemont also added $15,000 to this account (apparently to simulate the interest a CD would earn), which he had removed from another client's account. ² On August 2, 1993, Viemont and another individual used the $215,000 to purchase a CD from the Palmer Bank. This Palmer Bank CD was used in turn to collateralize a loan to Murdock Mining Company. Viemont and the other individual ³ took the $215,000 in loan money and transferred it back into the accounts of PPF-Danville and FPF-Danville. Officials of PPF-Taylorville and the Credit Union were not aware their money was being used for this purpose.

On July 6, 1995, a grand jury indicted Viemont on four counts of wire fraud. The first two counts were for the original two wire transfers on August 19, 1992, Count I relating to the transfer from PPF-Danville, and Count II relating to the transfer from FPF-Danville. The second two counts were for the wire transfers on July 29, 1993, Count III relating to the transfer from PPF-Taylorville, and Count IV relating to the transfer from the Credit Union. Viemont pled guilty to Count IV on August 7, 1995, pursuant to a written plea agreement, and the remaining counts were dismissed.

The Presentence Report ("PSR") calculated Viemont's offense level as 14, which included a base offense level of 6 (per U.S.S.G. § 2F1.1(a)), a 7-point enhancement for the $200,000 loss (per U.S.S.G. § 2F1.1(b)(1)(H)), a 2-point increase because the offense involved "more than minimal planning" (per U.S.S.G. § 2F1.1(b)(2)(A)), a 2-point increase because the offense involved the abuse of a position of trust (per U.S.S.G. § 3B1.3), and a 3-point reduction for acceptance of responsibility (per U.S.S.G. § 3E1.1). As Viemont had no criminal record, his criminal history category was I. His guideline range was determined to be 15 to 21 months. ⁴ The PSR noted that $200,000 in restitution was necessary to make the pension fund victims whole. The Probation Department did not receive Viemont's relevant financial disclosures in time to include them in the original PSR however, a supplement was issued after the relevant data was provided. The supplement provided the following evaluation:

Based on a quick analysis of the information provided, the defendant has a negative net worth of approximately $108,480 and a cash flow of about $370 per month. Most of his assets consist of equity in his residence. Almost half of his unsecured debts are attorneys' fees. Mr. Viemont is 56 years old, has a college education, and is employed with an annual salary of $25,000 to $30,000 per year. He reports that he previously earned $75,000 to $80,000 per year when self-employed. His securities license was suspended in 1993. He may be unable to generate that type of income in the future. The defendant's spouse is employed and generates one-half of the family income. He has no dependent children. Based on the above information I believe the defendant has the present and future ability to earn income that would allow him to pay a substantial portion of the restitution. An order of restitution is particularly important in this case because the defendant stole from a pension fund. ⁵

Viemont was sentenced on January 12, 1996. At sentencing, Viemont objected to the enhancement for "abuse of trust" and "more than minimal planning." He also argued to the court that he was entitled to a downward departure because the crime was an isolated act of aberrant behavior. Lastly, Viemont maintained that he was financially incapable of paying restitution. The district judge rejected all of his arguments. As to the "more than minimal planning" issue, the court opined that the enhancement was proper in view of the fact that the offense involved repeated criminal acts, involved considerable planning, and victimized more than one entity. The trial judge sentenced him to 15 months' imprisonment and imposed a $4,000 fine. As to restitution, the district court adopted the findings of the PSR, and ordered Viemont to pay $200,000 in restitution, $100,000 each to PPF-Danville and FPF-Danville. ⁶

II. ISSUES

Viemont raises two issues on appeal. First, he argues that the order of restitution is improper because the trial court failed to properly evaluate the factors in 18 U.S.C. § 3664, notably failing to consider his hopeless financial position and instead relying on the "speculative" conclusions in the PSR. Second, Viemont argues that the enhancement to his sentence for "more than minimal planning" is erroneous, because his offense did not involve any planning beyond that which would normally occur in any wire fraud.

III. DISCUSSION

A. Standard of Review/Applicable Law

This court will vacate an order of restitution only if the defendant demonstrates that the district judge abused his discretion in determining that restitution was warranted or in setting the amount to be paid. United States v. Ross, 77 F.3d 1525, 1552 (7th Cir.1996). We review a district court's enhancement of a sentence for "more than minimal planning" for clear error. United States v. Channapragada, 59 F.3d 62, 65 (7th Cir.1995).

The procedures for awarding restitution are set forth in 18 U.S.C § 3664, which provides as follows:

(a) The court, in determining whether to order restitution under section 3663 of this title and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate.

(b) The court may order the probation service of the court to obtain information pertaining to the factors set forth in subsection (a) of this section. The probation service of the court shall include the information collected in the report of presentence investigation or in a separate report, as the court directs.

(c) The court shall disclose to both the defendant and the attorney for the Government all portions of the presentence or other report pertaining to the...