United States v. Fawn Tadios , 822 F.3d 501 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30231
Plaintiff-Appellee,
D.C. No.
v. 4:13-cr-00051-BMM-1
FAWN PATRICIA ANN TADIOS,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Argued and Submitted December 8, 2015
Seattle, Washington
Filed May 18, 2016
Before: M. Margaret McKeown and Richard C. Tallman,
Circuit Judges and Sharon L. Gleason,* District Judge.
Opinion by Judge McKeown
*
The Honorable Sharon L. Gleason, United States District Judge for the
District of Alaska, sitting by designation.
2 UNITED STATES V. TADIOS
SUMMARY**
Criminal Law
The panel affirmed the district court’s inclusion in its loss
calculation at sentencing the estimated salary paid to the
defendant, the CEO of a federally-funded health care clinic
located on the Chippewa Cree’s Rocky Boy Reservation, for
time she spent visiting her husband when she claimed to be
traveling on business.
The defendant was convicted for converting federal funds
for personal use, using federal funds for personal benefit, and
misapplying clinic funds.
The panel rejected the defendant’s argument that because
she was an exempt employee, the Chippewa Cree suffered no
loss in paying her full salary for when she was visiting her
husband instead of performing clinic duties. The panel held
that including in the loss calculation under U.S.S.G. § 2B1.1
the estimated value of the time the defendant should have
reported as annual leave was not clear error.
The panel addressed the defendant’s remaining arguments
concerning her conviction and sentencing in a memorandum
disposition.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. TADIOS 3
COUNSEL
Steven Thomas Potts (argued), CJA, Great Falls, Montana;
Jeffry M. Foster, CJA Panel Attorney, Davis, Hatley,
Haffeman & Tighe, P.C., Great Falls, Montana, for
Defendant-Appellant.
Carl E. Rostad (argued), Assistant United States Attorney,
District of Montana, Great Falls, Montana, for Plaintiff-
Appellee.
OPINION
McKEOWN, Circuit Judge:
Fawn Patricia Ann Tadios asks us to ignore the old adage
“time is money” and hold that the value of an exempt
employee’s time cannot be used to calculate loss due to fraud
or theft under the United States Sentencing Guidelines. We
decline to do so.1
For eight years, Tadios served as the Chief Executive
Officer (“CEO”) of the Rocky Boy’s Health Board Clinic
(“the Clinic”), a federally funded health care facility located
on the Chippewa Cree’s (the “Tribe”) Rocky Boy Reservation
in Montana. As CEO, Tadios was entrusted with the
management of the Clinic’s health care programs and its $14
million annual budget.
1
We address Tadios’s remaining arguments concerning her conviction
and sentencing in a memorandum disposition filed concurrently with this
opinion. See United States v. Tadios, ___ Fed App’x ___ (9th Cir. 2016).
4 UNITED STATES V. TADIOS
During Tadios’s tenure with the Clinic, her husband,
Tribal Chairman Raymond Parker, was sentenced to the
federal penitentiary in Yankton, South Dakota for embezzling
tribal funds. Tadios took a series of trips to see him, partially
funding these personal visits with her tribal credit card and
Clinic travel advances. Rather than claim annual leave for
her absences, Tadios attempted to cover up the personal
nature of her trips. For example, Tadios listed the purpose of
a five-day March trip as a “site visit” to tour a nearby tribal
health clinic. As it turned out, Tadios spent only two hours
touring the healthcare facility—the rest of the excursion was
devoted to visiting her husband. Indeed, each time Tadios
visited her husband, she told her board that she was traveling
for “official business purposes.” Memorializing her
dissimulation, Tadios submitted timesheets listing eight hours
of “travel” on most of the days she spent in Yankton with
Parker.
Tadios was convicted for converting federal funds
allocated to the Clinic for personal use in violation of
18 U.S.C. § 666(a)(1)(A), using federal funds for personal
benefit in violation of 18 U.S.C. § 1163, and misapplying
Clinic funds in violation of 18 U.S.C. § 669. Recognizing her
otherwise exemplary record, the district court sentenced
Tadios to a prison term of one year and a day, followed by
two years of supervised release, and ordered $15,000 in
restitution to the Tribe.
In calculating the loss Tadios inflicted on the Tribe under
§ 2B1.1 of the Sentencing Guidelines (dealing with economic
offenses involving, inter alia, theft, fraud or deceit), the
district court included the estimated salary the Clinic paid to
Tadios, an exempt, management-level employee, for the time
she spent visiting her husband when she claimed to be
UNITED STATES V. TADIOS 5
traveling on business.2 The heart of this appeal—and an issue
of first impression in our circuit—is whether the district court
committed clear error by including the salary loss. See
United States v. Torlai, 728 F.3d 932, 937 (9th Cir. 2013)
(“We review the district court’s factual determinations,
including the calculation of the victim’s loss, for clear error.”
(internal quotations, citations and alterations omitted)).
Because Tadios was a salaried employee, the district court
estimated the value of her time by calculating her hourly rate
and multiplying that figure by the number of hours that she
should have claimed as annual leave.3 Reliance on time and
salary records was sufficient, as the court “need only make a
reasonable estimate of loss, given the available information.”
United States v. Burns, 104 F.3d 529, 536 (2d Cir. 1997); see
also U.S.S.G. § 2B1.1 cmt. n.3(C) (In determining intended
loss, a district court “need only make a reasonable estimate of
the loss . . . based upon th[e] evidence.”).
Tadios argues that, because she was an exempt employee,
she was entitled to her full base pay for every pay period in
which she performed any work, regardless of her travel or
vacation schedule. Thus, she asserts that the Tribe suffered
no loss in paying her full salary on days and for hours when
2
This inclusion resulted in a sentencing enhancement and an increased
restitution award. The district court calculated the total loss amount as
just under $16,000, including both travel expenditures for personal use and
lost salary, resulting in a four-point increase in the sentencing level. See
U.S.S.G. § 2B1.1(b)(1)(C). Without inclusion of the estimated salary,
Tadios would not have qualified for this enhancement.
3
The court estimated Tadios’s hourly rate by dividing her annual salary
by the number of hours in an average work year, assuming a standard 40-
hour work week.
6 UNITED STATES V. TADIOS
she was visiting her husband instead of performing Clinic
duties. She also claims that the lack of evidence monetizing
her vacation leave dooms the loss calculation. We disagree.
Under Tadios’s best of both worlds theory, she could
sleep on the job full time or visit her husband 40 hours per
week without imposing a financial loss on the Tribe because,
as an exempt employee, she would be paid anyway. This
argument strains credulity, underscores the duplicitous nature
of her conduct, and would make a farce of public
accountability.
“Public accountability is the notion that ‘governmental
employees should not be paid for time not worked due to the
need to be accountable to the taxpayers for expenditure of
public funds.’” Serv. Emps. Intern. Un., Local 102 v. County.
of San Diego, 60 F.3d 1346, 1352 n.2 (9th Cir. 1994) (quoting
Hilbert v. District of Columbia, 23 F.3d 429, 435 (D.C. Cir.
1994) (Henderson, J., concurring in part, dissenting in part)).
According to this principle, even exempt public employees
must honestly account for time away from work.4
The public accountability principle underscores that time
has value. It was thus not clear error for the district court to
include the estimated value of the time that Tadios should
have reported as annual leave in calculating the total losses
Tadios inflicted on the Tribe. By failing to claim or deduct
4
The Tribe’s own personnel policies reflect the accountability principle,
providing that “[s]ubmittal of a fraudulent time sheet will be grounds for
disciplinary action or termination,” and “exempt employees are not
compensated for overtime and therefore may require a more flexible
workday on occasion. . . . Exempt employees who abuse this policy will
be required to utilize the time clock.”
UNITED STATES V. TADIOS 7
annual leave for the dates when she visited her husband and
told her board she was traveling for work, Tadios harmed the
Clinic twice over: first, by getting the Clinic to pay for travel
expenses it had no obligation to cover, and again by getting
the Clinic to pay her salary for time she was supposed to be
working but was not.
Tadios abused her status as an exempt employee by
submitting fraudulent time sheets and falsely claiming to be
working or traveling rather than taking annual leave when she
visited her husband. In so doing, she deprived the Tribe of
her honest services, and thereby “obviously inflicted some
level of pecuniary harm on the organization.” United States
v. Crawley, 533 F.3d 349, 357 (5th Cir. 2008). The district
court’s calculation of this harm by estimating the loss Tadios
inflicted on the Tribe was not clearly erroneous.
AFFIRMED.