No credit against loss where the guideline sentence is based on intended loss and there is no victim

In U.S. v. Massam, the defendant was convicted of theft and embezzlement of an employee benefit fund (E.R.I.S.A) he set of for himself and his employees and for which he served as the pension plan administrator. After divorcing his fifth wife, the state divorce court entered a distribution order to his ex-wife in the amount of $452,242. The defendant then attempted to illegally transfer of the funds in the pension plans to a foreign bank account so he could later withdraw the funds. His attempt to transfer the funds failed when the foreign bank refused to accept the wire and the funds were returned to the domestic bank. Following that failed attempt he appealed the state court judgment awarding his wife’s funds pension funds, and in filing the appeal he posted a supersedeas bond in an amount which covered the court ordered amount for the ex-wife. Subsequently, the divorce court order was affirmed and his obligation to pay her was met by the supersedeas bond. Following all that, the defendant was investigated for his theft of the pension plans and eventually indicted and he pleaded guilty to the federal crime of theft, embezzlement, and money laundering in connection with his attempted transfer of the employee benefit funds.

His presentence investigation report calculated is guideline range based on the intended loss of $1,185,863.00 which was the amount that he attempted to transfer to the foreign bank. The presentence report gave him some credit for the funds still remaining in the pension fund. The district court rejected his argument that he should receive credit and for the amount he paid out of the bond to satisfy his pension related obligations to in his ex-wife under the asset allocation order. Credit for this amount would have reduced his sentencing guideline range significantly but the district court refused to give them credit.

The 11th Circuit found that he should not be given credit for the bond posted to pay his ex-wife because in his case the sentencing guidelines required that the calculation be based upon the intended loss which was the amount the defendant attempted to transfer to the foreign bank. It rejected his argument that his guideline should be reduced by the amount his wife received from the bond posted after he appealed from the divorce order. While the guidelines provide that a loss they would be reduced by the money returned by the defendant, the credit-against-loss is not available where the guideline range is based upon intended loss alone. It is also not available here because there is no victim in the case of an intended loss. The 11th Circuit also rejected the defense argument that the wife became a victim because her property interests was imperiled by the attempted overseas transfer. The court found the overseas transfer attempt took place long before his wife was due to receive the funds, which she eventually received from the supersedeas bond.

The entertaining opening paragraph of this opinion written by Judge Carnes is worth the read.