Court Distinguishes Chapter Two and Chapter Three “Victims” under the Guidelines

In United States v. Kennedy, 2009 WL 250105 (Feb. 4, 2009), defendant worked for a non-profit corporation that received government benefit payments, held them in trust, and made disbursements for expenses for elderly persons unable to manage their own financial affairs. Kennedy was convicted of writing checks, mostly payable to cash, from the accounts of 34 beneficiaries. The non-profit and its insurer fully replenished the accounts from which money was taken. At sentencing, the court applied a two-point enhancement for ten or more victims (§ 2B1.1(b)(2)(a)) and a two-point enhancement for vulnerable victims (§ 3A1.1(b)(1)). On appeal, Kennedy challenged the enhancements.

The Third Circuit agreed that the § 2B1.1(b)(2)(a) enhancement, based on the number of victims, did not apply. The Court held that the account holders from whose accounts the defendant stole funds were not “victims” within the meaning of that enhancement where the account holders were completely reimbursed by defendant's employer and the employer's insurer before they even knew funds were missing from their accounts. Thus, they suffered no pecuniary harm, a prerequisite for being a “victim” under § 2B1.1.

The Court did uphold the vulnerable victim enhancement under § 3A1.1(b)(1), based on the same thirty-four account holders. Distinguishing “offense conduct”based chapter two enhancements from “relevant conduct” based chapter three enhancements, the Court reasoned that it was the account holders’ incapacity to manage their own financial affairs which was the reason for defendant’s management and access to their accounts– establishing the required nexus between the victim’s vulnerability and the crime’s ultimate success.