APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 79-00133)
Before Gibbons and Van Dusen, Circuit Judges, and Ackerman,*fn* District Judge.
Defendant, Biagio Pinto, was charged in a three-count indictment with violating 18 U.S.C. § 2113(b), 18 U.S.C. § 1014, and 18 U.S.C. § 1343, respectively. The district court jury returned a verdict of guilty on Counts 1 and 2 and not guilty on Count 3.*fn1 Defendant was sentenced to five years' imprisonment on Count 1 and five years' probation on Count 2. We reverse defendant's conviction and sentence under Count 1 because his conduct lies outside the scope of activity proscribed by 18 U.S.C. § 2113(b). We affirm his conviction on Count 2 and remand with respect to the sentence on that count as indicated in part III below.
Defendant Pinto was the president of Pinto Trucking Service, Inc. ("PTS"). On June 5, 1974, Nissin Unyu Soko ("Nissin"), a Japanese customer of PTS, instructed its bank in Japan, the Sanwa Bank Limited ("Sanwa Bank"), to remit $193.51 to PTS to satisfy a business debt.*fn2 Sanwa Bank did so by sending a telex communication to its correspondent bank in the area, Philadelphia National Bank ("PNB").
On June 6, 1974, PNB received the telex from the Sanwa Bank. In processing it, however, PNB mistakenly interpreted the telex to be a transmission of $193,511. Unaware of its mistake, PNB notified PTS and asked that firm how it wished to have the $193,511. handled. PTS, through its comptroller, requested that PNB deposit the funds in the PTS account at First Pennsylvania Banking and Trust Company ("First Pennsylvania"). PNB did so.
Subsequently, Pinto,*fn3 as president of PTS, drew checks on the corporation's account to pay its creditors. By the end of July 1974, the account, including the $193,511. deposit, was completely exhausted.
Meanwhile, PNB had not yet discovered its error. On July 31, 1974, PNB received a form letter from the Sanwa Bank stating that Sanwa did not recognize the $193,511. charge. PNB responded routinely and provided the Sanwa Bank with the data necessary to trace the transaction.
On September 23, 1974, PNB received an "urgent" letter from the Sanwa Bank stating that the June 6, 1974, transmittal for the PTS account was $193.51, not $193,511. PNB reviewed the cable, finally realized its mistake, immediately called PTS to inform it of the error, and demanded repayment of the difference. The comptroller at PTS responded that he would investigate the matter and report back as soon as possible.
On September 27, 1974, an independent auditor at PTS called PNB. He reported that defendant Pinto had assured him PTS had invoices for the $193,511. and that PTS was entitled to the money. PNB again verified the telex mistake with the Sanwa Bank, sent copies of the verification to the attorney for PTS, and demanded repayment. On October 2, 1974, the PTS attorney responded, stating that PTS still believed it was entitled to the money.
By mid-October 1974, PTS acknowledged that the remittance was a mistake and commenced negotiations with PNB to repay the money. The negotiations proved fruitful and PTS reimbursed the bank for the overpayment by the end of 1978.