United States v. William Aramony, United States of America v. Thomas J. Merlo

166 F.3d 655, 83 A.F.T.R.2d (RIA) 766, 1999 U.S. App. LEXIS 1138, 1999 WL 34952
CourtCourt of Appeals for the Fourth Circuit
DecidedJanuary 28, 1999
Docket97-4363, 97-4540
StatusPublished
Cited by231 cases

This text of 166 F.3d 655 (United States v. William Aramony, United States of America v. Thomas J. Merlo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. William Aramony, United States of America v. Thomas J. Merlo, 166 F.3d 655, 83 A.F.T.R.2d (RIA) 766, 1999 U.S. App. LEXIS 1138, 1999 WL 34952 (4th Cir. 1999).

Opinions

Affirmed in part, vacated in part, and remanded by published opinion. Judge HAMILTON wrote the opinion, in which Judge KING joined. Judge LUTTIG wrote a separate opinion concurring in part and dissenting in part.

OPINION

HAMILTON, Circuit Judge:

Codefendants William Aramony and Thomas Merlo (collectively the Defendants) appeal their respective sentences imposed following our remand for resentencing in United States v. Aramony, 88 F.3d 1369 (4th Cir.1996), cert. denied, 520 U.S. 1239, 117 S.Ct. 1842, 137 L.Ed.2d 1046 (1997) (Aramony I). We affirm the Defendants’ sentences in all respects except for the district court’s imposition of a $300,000 fine on Aramony and a $30,000 fine on Merlo. Accordingly, we vacate the fine components of the district court’s respective judgments and remand for reconsideration of its decisions imposing fines on the Defendants in accordance with our instructions as set forth herein.

I

In Aramony I, we affirmed the Defendants’ convictions on various counts of fraud, see 18 U.S.C. §§ 371, 1341, 1343; various counts of engaging in the interstate transportation of fraudulently acquired property, see 18 U.S.C. § 2314; various counts of filing false income tax returns, see 26 U.S.C. § 7206(1); and various counts of aiding the filing of false income tax returns, see 26 U.S.C. § 7206(2). See Aramony I, 88 F.3d at 1373. However, we vacated the Defendants’ convictions on various counts of money laundering, see 18 U.S.C. § 1957, because the district court did not require the jury to make a finding on an essential element of money laundering, and under the circumstances of the case, we were precluded from applying harmless-error analysis. See Aramony I, 88 F.3d at 1373, 1385-87.

Our vacatur of the Defendants’ money laundering convictions required us to vacate the Defendants’ respective sentences and remand for resentencing, because the Defendants’ total offense levels under the United States Sentencing Guidelines (the Sentencing Guidelines or USSG) had been based upon their money laundering convictions. We also [658]*658vacated the district court’s $552,188.97 forfeiture orders against Aramony and Merlo, which were premised on their money laundering convictions. See id. at 1392.

A.Background.

The facts underlying the Defendants’ convictions are set forth in detail in Aramony I. See id. at 1372-76. Accordingly, we need only briefly summarize them here.

Aramony was the chief executive officer of the United Way of America (UWA) from 1970 until his termination in March 1992. UWA is “a nonprofit organization that acts as a service organization for local United Way organizations located throughout the United States.” Id. at 1373. UWA was incorporated in New York and is headquartered in Alexandria, Virginia. Merlo served as UWA’s chief financial officer from January 1990 until his termination in March 1992.

In their leadership positions, both men improperly used UWA money for personal gain. For example, Aramony charged personal chauffeuring expenses to UWA and purchased a condominium in Florida for his personal use with UWA funds, and Merlo used his position at UWA to personally obtain $120,000 in proceeds of an annuity belonging to UWA. Merlo also used his position at UWA to aid Aramony in his various frauds on UWA, many of which served to further Aramony’s relationships with various women.

B.The Defendants’ Initial Sentencings.

The district court initially sentenced the Defendants on June 22, 1995. Pursuant to the grouping rules of the Sentencing Guidelines, see USSG § 3D1.1-5 (1991),1 the Defendants’ money laundering convictions provided their respective base offense levels for purposes of calculating their sentencing ranges. The district court sentenced Aramo-ny to eighty-four months’ imprisonment and Merlo to fifty-five months’ imprisonment, with each to serve three years of supervised release. Additionally, pursuant to 18 U.S.C. § 982, the district court ordered the Defendants to forfeit $552,188.97 on account of their money laundering convictions. In light of this forfeiture order, the district court did not impose any fines upon the Defendants.

Of relevance in the present appeal is the fact that the Presentence Report (PSR) prepared for the Defendants’ initial sentencings, recommended a two-level increase in the Defendants’ offense level with respect to the fraud counts pursuant to USSG § 2F1.1(b)(2) (1991). USSG § 2F1.1(b)(2) (1991) provides for a two-level increase in a defendant’s base offense level with respect to anjr fraud counts “[i]f the offense involved (A) more than minimal planning, or (B) a scheme to defraud more than one victim....” Id. (emphasis added).

The Defendants objected to this recommended increase. At sentencing, the district court sustained the Defendants’ objections with respect to USSG § 2Fl.l(b)(2)(A) (1991), separately commenting with regard to each defendant that his fraud crimes did not involve more than minimal planning. However, the district court never expressly addressed the applicability of a two-level increase pursuant to USSG § 2F1.1(b)(2)(B) (1991) for a scheme to defraud involving more than one victim.

C.The Defendants’ Resentencings.

Following remand, the probation officer prepared revised PSRs for the Defendants. The revised PSRs are identical to the initial PSRs with the exception of certain redac-tions and other changes made to reflect the reversal of the Defendants’ convictions on the money laundering counts. With the money laundering convictions vacated, the grouping rules of the Sentencing Guidelines, see USSG § 3D1.1-5(1991), required the Defendants’ respective base offense levels to be premised upon their fraud convictions.

1. Aramony.

The district court resentenced Aramony on April 25, 1997. In resentencing Aramony, the district court determined that Aramony’s [659]*659total offense level under USSG § 2F1.1 (1991), which is the section of the Sentencing Guidelines dealing with offenses involving fraud or deceit, was twenty-seven, consisting of a base offense level of six, an eleven-level increase based upon the amount of loss involved as quantified in a dollar amount,2

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166 F.3d 655, 83 A.F.T.R.2d (RIA) 766, 1999 U.S. App. LEXIS 1138, 1999 WL 34952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-william-aramony-united-states-of-america-v-thomas-j-ca4-1999.