United States v. Fawn Tadios
2016 U.S. App. LEXIS 9055
| 9th Cir. | 2016Background
- Fawn P. A. Tadios was CEO of the Rocky Boy’s Health Board Clinic, managing programs and a $14 million budget. She served in that role for eight years.
- Tadios repeatedly traveled to visit her incarcerated husband and charged travel costs and travel advances to the Clinic, while representing the trips as official business.
- She submitted timesheets claiming eight hours of travel for most days she visited her husband, rather than charging annual leave.
- Tadios was convicted of theft and misuse of federal/tribal funds under 18 U.S.C. §§ 666(a)(1)(A), 1163, and 669; district court sentenced her to 1 year + 1 day imprisonment, supervised release, and $15,000 restitution.
- For loss calculation under U.S.S.G. § 2B1.1 the district court included an estimate of the value of Tadios’s salary for the hours she should have taken as annual leave, increasing her offense level and restitution.
- Tadios appealed, arguing that as an exempt (salaried) employee her salary could not be used to calculate loss because she would be paid regardless of hours not worked.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether value of an exempt employee’s time may be included in loss under Sentencing Guidelines | Tadios: Exempt salary paid regardless of hours, so Tribe sustained no loss from paid time off; lack of evidence monetizing leave defeats loss calc. | Government/Tribe: Public accountability requires exempt employees to account for time; fraudulent claims of work/time caused pecuniary harm; reasonable estimate of lost salary is permissible. | Court affirmed: district court did not clearly err including estimated salary value for time Tadios should have used as annual leave. |
Key Cases Cited
- United States v. Torlai, 728 F.3d 932 (9th Cir.) (standard of review: clear error for loss calculations)
- United States v. Burns, 104 F.3d 529 (2d Cir.) (district court may make reasonable estimate of loss)
- Service Employees Intern. Union, Local 102 v. County of San Diego, 60 F.3d 1346 (9th Cir.) (public accountability principle for governmental employee time)
- Hilbert v. District of Columbia, 23 F.3d 429 (D.C. Cir.) (discussion of public accountability and pay for time worked)
- United States v. Crawley, 533 F.3d 349 (5th Cir.) (deprivation of honest services inflicts pecuniary harm on organization)