Appeal from the United States District Court for the Central District of Illinois. No. 95-CR-20027 Harold A. Baker, Judge.
Before COFFEY, MANION, and ROVNER, Circuit Judges.
Appellant Ronald J. Viemont pled guilty to one count of wire fraud, 18 U.S.C. sec. 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. sec. 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. sec. 2F1.1(b)(2). We affirm.
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. *fn1 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. *fn2 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 *fn3 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. sec. 2F1.1(a)), a 7-point enhancement for the $200,000 loss (per U.S.S.G. sec. 2F1.1(b)(1)(H)), a 2-point increase because the offense involved "more than minimal planning" (per U.S.S.G. sec. 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. sec. 3B1.3), and a 3-point reduction for acceptance of responsibility (per U.S.S.G. sec. 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. *fn4 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 ...