UNITED STATES of America, Plaintiff-Appellee, v. Gregory Peter TORLAI, Jr., Defendant-Appellant.
No. 11-10359.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 18, 2013. Filed Aug. 26, 2013.
728 F.3d 932
Before: J. CLIFFORD WALLACE, JEROME FARRIS, and JAY S. BYBEE, Circuit Judges.
OPINION
BYBEE, Circuit Judge:
Thomas Jefferson once wrote to John Jay: “Cultivators of the earth are the most valuable citizens. They are the most vigorous, the most independent, the most virtuous, and they are tied to their country and wedded to its liberty and interests by the most lasting bands.” 8 The Papers of Thomas Jefferson 426 (Julian P. Boyd et al. eds., Princeton University Press) (1950) (spelling modernized). Although an industrious cultivator of the earth, Gregory Peter Torlai did not prove the most virtuous. Torlai was convicted of sixteen counts of making a false claim for farm benefits in connection with the Federal Crop Insurance Act. At sentencing, the district court determined that Torlai had caused a loss of $410,372, resulting in a 14-level sentencing guideline increase. In this appeal, we consider whether the district court erred in its loss calculation. These are matters of first impression. We affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
A. Federal Crop Insurance Program
“Farming has literally been a feast or famine proposition since the beginning of time.” David F. Rendahl, Federal Crop Insurance: Friend or Foe?, 4 San Joaquin Agric. L.Rev. 185, 185 (1994). “Most agricultural production is subject to the vagaries of weather, and the nature of agricultural supply and demand often results in volatile market prices.” Dennis A. Shields, Cong. Research Serv., R40532, Federal Crop Insurance: Background 1 (2012). One of the most vivid illustrations of agricultural risk is the American Dust Bowl. In the 1930s, the myopic agricultural practices of homesteaders coupled with severe drought resulted in widespread crop failure that left wide swaths of the Great Plains region of the United States highly susceptible to wind erosion. See Richard Hornbeck, The Enduring Impact of the American Dust Bowl: Short- and Long-Run Adjustments to Environmental Catastrophe, 102 Am. Econ. Rev. 1477, 1479 (2012). “Dust storms in the 1930s blew enormous quantities of topsoil off Plains farmland; on ‘Black Sunday’ in 1935, one such storm blanketed East Coast cities in a haze.” Id. The destruction left in the Dust Bowl‘s wake was so severe that it triggered a massive exodus of farmers and their families who lost their livelihoods long before the dust settled.
The Dust Bowl‘s awful destruction not only motivated The Grapes of Wrath, but also spurred Congress to “authorize[] federal crop insurance as an experiment to address the effects of the Great Depression and crop losses seen in the Dust Bowl.” Shields, supra at 1. It was only with the Federal Crop Insurance Act of 1980 (“FCIA“),
“In purchasing a policy, a producer growing an insurable crop [in a covered county] selects a level of coverage and pays a portion of the premium, which increases as the level of coverage rises. The remainder of the premium is covered by the federal government (about 62% of total premium, on average, is paid by the government).” Id. at 3. Thus, the federal crop insurance program subsidizes the cost borne by a farmer in obtaining crop insurance, increasing farmer participation. See id.
Generally speaking, there are two types of crop insurance policies: yield-based and revenue-based. Id. at 5. Yield-based crop insurance policies provide insured farmers with “an indemnity if there is a yield loss relative to the farmer‘s ‘normal’ (historical) yield.” Id. In contrast, revenue-based crop insurance policies are more comprehensive, “protect[ing] against crop revenue loss resulting from declines in yield, price, or both.” Id. Like other insurance products, the differing crop insurance policies only provide an indemnity against certain risks of loss, usually related to unpredictable, weather-related events that are beyond the power of a farmer to control.
A farmer desiring to obtain crop insurance approaches a private insurer and is required to fill out an application for crop insurance containing detailed information: e.g., the type of insurable crop; date of planting; applicable irrigation practice, if any; and acreage under cultivation. The farmer also provides an actual production history (“APH“) for the parcel to be insured. The APH establishes a record of productivity for the subject parcel, assisting in the calculation of the policy premium and any benefits that might be required to be paid. This information must be received prior to planting the crop a farmer desires to insure. After planting, however, the farmer must submit an acreage report certifying the veracity of all final information submitted regarding the insured crop, including the amount of the farmer‘s insurable interest in the crop. This cumulative information is used to calculate the premium that applies to the issued crop insurance policy.
If, during the course of the growing season, a farmer‘s insured crop suffers a covered cause of loss, the farmer must comply with a claims procedure, including filing a notice of loss, to obtain an indemnity payment. As part of the claims process, an adjuster must inspect the crop to verify the farmer‘s asserted cause of loss and file a corresponding report—certified by the farmer—detailing information about the crop and the cause of loss. If the loss is determined to be covered by the crop insurance policy, the required indemnity will be paid to the farmer.
Although the crop insurance premium is due when the insurance policy is issued, in practice, the farmer is allowed to delay payment until either the insured crop is harvested and marketed, or a valid claim is submitted and an indemnity paid. Normally, when a valid claim is submitted, the farmer never pays the premium out-of-pocket; rather, the farmer receives an indemnity payment that is net the crop in-
B. Facts
Torlai is an experienced farmer. In fact, for approximately thirty years, Torlai has been actively involved in the cultivation of numerous different crops on varied parcels of land throughout northern California, including in Contra Costa, Lassen, and San Joaquin counties. As part of his substantial farming operations, Torlai has long taken advantage of federal crop insurance programs to hedge against the risks he faces in his farming operations.
In 2008, an indictment was returned against Torlai charging him with seventeen counts of making a false claim for farm benefits. See
C. Procedural History
At trial, the jury convicted Torlai of all sixteen counts placed before them—the government having previously dismissed one of the seventeen counts in the indictment. The Pre-Sentence Report recommended that Torlai be given a 12-level sentencing guideline increase based on an estimated $350,000 loss. At the sentencing hearing, however, the government argued that the appropriate loss amount should be $410,372, requiring a 14-level sentencing guideline increase.1 The government‘s proposed loss amount required the district court to determine that Torlai was not legitimately entitled to any portion of the indemnity payments he received, including (1) the gross amount of the indemnity without subtracting Torlai‘s portion of the crop insurance premium, and (2) the premium subsidies and A & O expenses paid by the government. The district court accepted the government‘s calculated loss amount, but varied from the sentencing guideline range and imposed a below-Guidelines sentence of concurrent terms of 30 months imprisonment and 36 months supervised release. Torlai timely appealed, arguing that the district court erred in imposing a 14-level sentencing guidelines increase for loss based on the government‘s calculation. We have jurisdiction pursuant to
II. STANDARD OF REVIEW
Our appellate review of a sentence “is to determine whether the sentence is reasonable; only a procedurally erroneous or substantively unreasonable sentence will be set aside.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc); see also Gall v. United States, 552 U.S. 38, 46 (2007) (“Our explanation of ‘reasonableness’ review in the Booker opinion made it pellucidly clear that the familiar abuse-of-discretion standard of review now applies to appellate review of sentencing decisions.“). Thus, we must first consider “whether the district court committed sig-
We review “the district court‘s construction and interpretation of the Sentencing Guidelines de novo,” United States v. Nielsen, 694 F.3d 1032, 1034 (9th Cir.2012), and “the district court‘s application[] of the Guidelines to the facts” for abuse of discretion, United States v. Holt, 510 F.3d 1007, 1010 (9th Cir.2007). We will only reverse a district court‘s decision as an abuse of discretion where we either “determine de novo [that] the trial court identified the [in]correct legal rule to apply,” or “determine [that] the trial court‘s application of the correct legal standard was (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record.” United States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir.2009) (en banc) (internal quotation marks omitted).
We review the district court‘s factual determinations, “including the calculation of the victim‘s loss, ... for clear error.” United States v. Tulaner, 512 F.3d 576, 578 (9th Cir.2008). “The clear error standard is significantly deferential and is not met unless [we are] left with a definite and firm conviction that a mistake has been committed.” Fisher v. Tucson Unified Sch. Dist., 652 F.3d 1131, 1136 (9th Cir.2011) (internal quotation marks omitted). “[I]f the district court‘s findings are plausible in light of the record viewed in its entirety, [we] cannot reverse even if [we are] convinced [we] would have found differently.” United States v. McCarty, 648 F.3d 820, 824 (9th Cir.2011) (internal quotation marks omitted). Thus, “[w]here there are two permissible views of the evidence, the factfinder‘s choice between them cannot be clearly erroneous.” United States v. Elliott, 322 F.3d 710, 715 (9th Cir.2003) (internal quotation marks omitted).
III. DISCUSSION
When imposing a sentence upon an individual convicted of making a false claim for farm benefits pursuant to
The “commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993); see also United States v. Jackson, 697 F.3d 1141, 1146 (9th Cir.2012) (per curiam). The
Specifically, “loss is the greater of actual loss or intended loss,” subject to certain exceptions that are not relevant in this case.
A special rule, however, applies to cases involving government benefits:
In a case involving government benefits (e.g., grants, loans, entitlement program payments), loss shall be considered to be not less than the value of the benefits obtained by unintended recipients or diverted to unintended uses, as the case may be. For example, if the defendant was the intended recipient of food stamps having a value of $100 but fraudulently received food stamps having a value of $150, loss is $50.
A. Indemnity Payment as the Basis for Loss Calculation
First, Torlai argues that he actually planted and lost some legitimately insured crops. Torlai asserts that he “[c]learly ... did, in fact, plant crops that were insured under the policies issued,” but “[n]either the jury at trial nor the Court at sentencing ever attempted to ascertain what portions of those indemnities paid were legitimate and what portions were not.” In Torlai‘s estimation, the district court merely assumed “that Defendant was not entitled to any of the money he received in the form of indemnity payments,” with “[n]o attempt [being] made to separate the legitimate from the illegitimate claims for the purpose of determining how much of the insurance claim was fraudulent ... and how much of the claim was not erroneous.” Thus, Torlai argues
In a government benefits case, “loss shall be considered to be not less than the value of the benefits obtained by unintended recipients or diverted to unintended uses.”
1. Stoney Creek Ranch 2001
The Pre-Sentence Report found that Torlai actually planted substantially less than the 499 acres of wheat for Stoney Creek Ranch in 2001 he reported, and that the wheat that was planted was not irrigated. Torlai also misstated his interest in the crops grown on Stoney Creek Ranch. Moreover, Torlai only purchased enough beardless wheat seed to plant approximately 120 acres of non-irrigated land—though he had altered an invoice to make it appear as if he had purchased a greater quantity of seed. Thus, the record reveals that Torlai made multiple material misstatements that rendered his crop insurance policy for Stoney Creek Ranch in 2001 void. This evidence was clearly sufficient for the district court to determine that Torlai was not an intended beneficiary of any indemnity payment related to Stoney Creek Ranch in 2001.
Furthermore, regardless of the validity of Torlai‘s crop insurance policy for Stoney Creek Ranch in 2001, the government will not pay an indemnity unless the farmer has filed a valid claim. That is, a farmer covered by a crop insurance policy must show that the loss he suffered was caused by a covered event. Regarding the 2001 Stoney Creek Ranch crop, Torlai based his claim for an indemnity payment on losses supposedly resulting from hail, wind, and excessive precipitation. The evidence showed, however, that there was “no crop to be impacted by the causes of loss.” The satellite images introduced into evidence did not show any evidence of a wheat crop that had developed to a sufficient stage of maturation that could have been harmed by the purported causes of loss. Even assuming that the weather events Torlai reported did occur and that Torlai grew some portion of the insured crop and had a valid crop insurance policy, the evidence clearly showed that the weather events asserted in the filed claim could not have caused any damage and, therefore, Torlai was entitled to no indemnity. The absence of a legitimate cause of loss means that Torlai was not an intended beneficiary of any indemnity for Stoney Creek Ranch in 2001, regardless of any other factors.
2. Stoney Creek Ranch 2002
The Pre-Sentence Report found that Torlai actually planted substantially less than the reported 836.1 acres of wheat for Stoney Creek Ranch in 2002, and that the wheat that was planted was not irrigated. The Pre-Sentence Report‘s conclusion is supported by the record. Likewise, Torlai again misstated his interest in the crops grown on Stoney Creek Ranch. In fact, satellite images revealed that there was insufficient land cleared on Stoney Creek Ranch to even plant 499 acres of wheat. “[A]pproximately 536 of the 836.1 acres reported as planted to wheat by [Torlai] ha[d] not been converted from native vegetation grass” during the relevant time period. Furthermore, crop insurance adjusters did not find any wheat planted in fields that Torlai represented as having been planted to wheat. What crop insurance adjusters did find were large pits full of garbage and debris, a far-cry from a wheat stand. Thus, the record reveals that Torlai made material misstatements that render his crop insurance policy for Stoney Creek Ranch in 2002 void. On that basis, the evidence was sufficient for the district court to determine that Torlai was not an intended beneficiary of any indemnity payment related to Stoney Creek Ranch in 2002.
Regardless of the validity of Torlai‘s crop insurance policy for Stoney Creek
3. Stoney Creek Ranch 2005
As with the previous claims, the Pre-Sentence Report concluded that Torlai had actually planted substantially less than the reported 650 acres of wheat for Stoney Creek Ranch in 2005, and that the wheat that was planted was not irrigated. The Pre-Sentence Report‘s conclusion is supported by the record. Torlai also misstated his interest in the crops grown on Stoney Creek Ranch. Thus, the record reveals that Torlai made material misstatements that render his crop insurance policy for Stoney Creek Ranch in 2005 void.
Furthermore, the evidence showed that Torlai had no intention of harvesting any of the wheat that was planted because the wheat was of a variety used as a forage crop for beeves and thus was not eligible for crop insurance. Even if the fields represented by Torlai as having been planted had actually been planted to a variety of wheat intended for being harvested as grain, Stoney Creek Ranch‘s rocky, sagebrush-covered terrain was such that a combine would have been unable to harvest a wheat crop. The absence of an insurable crop means that Torlai was not an intended beneficiary of any indemnity for Stoney Creek Ranch in 2005.
We note that the Stoney Creek Ranch claims submitted by Torlai in 2002 and 2005 were not actually paid. The evidence is sufficient, however, to support a finding by the district court that Torlai intended in both 2002 and 2005 to follow the pattern of his successful Stoney Creek Ranch crop insurance fraud perpetrated in 2001. Thus, the amounts that would have been paid as an indemnity for both the 2002 and 2005 claims were properly considered by the district court as intended losses. See
4. Union Island 2001
Torlai claimed that safflower was planted on Union Island in 2001 and that the crop failed due to inclement weather. Contemporaneous records show, however, that the fields that were supposedly planted in safflower were actually planted in corn and alfalfa. This evidence was supported by satellite images. The satellite images did, however, show that approximately 34.7 acres were planted in safflower, though the record is ambiguous as to whether the 34.7 acres of safflower documented by satellite images was on Torlai‘s property. Regardless, Torlai had reported that he had planted 199.3 acres in safflower on Union Island in 2001. Torlai‘s material misstatements render his crop insurance policy for Union Island in 2001 void.
Furthermore, the evidence showed that the alleged date of loss—April 10, 2001—was only five days after the date the safflower was reportedly planted—April 5, 2001. The testimony at trial established that “safflower emergence usually takes between one and three weeks.” So, the evidence showed that any safflower that might have actually been planted on Union Island would not have emerged from the soil before the date of the alleged cause of
5. Quimby Island 2001
Quimby Island was mostly inundated with water at the alleged time of planting, and wheat cannot be planted when the soil is submerged. Moreover, evidence was presented that at the alleged time of loss, the crop had not grown to a point where it could have been adversely impacted by the hail, excess precipitation, inclement weather, and wind that were the causes of loss Torlai alleged. Even assuming that the weather events did occur, the evidence clearly showed that the weather could not have caused any damage, and Torlai was not entitled to indemnity. The absence of a legitimate cause of loss means that Torlai was not an intended beneficiary of any indemnity for Quimby Island in 2001.
*
By virtue of his fraud, Torlai was not eligible for any government benefit under the crop insurance program, and therefore, he was not an “intended beneficiary.” The district court did not err in including the full indemnity amount for all claims from Stoney Creek Ranch in 2001, 2002, 2005; Union Island in 2001; and Quimby Island in 2001.
B. Accounting for Premiums Withheld by the Insurer
Torlai argues that the district court erred by “not taking into account the producer premiums [he] paid,” i.e., the non-subsidized portion of the crop insurance premium for which an insured farmer is responsible. As we have discussed, although producer “premiums are owed at the start of the growing season,” they do not have to be paid until after harvesting the insured crop. So, when an event occurs that is covered by crop insurance and a farmer has not yet satisfied the premium, the amount of the producer premium is deducted from the actual amount paid to the insured. Torlai argues that since “the indemnity payment actually received would be the indemnity under the policy minus the producer premium, that premium is not an offset,” and some $28,874 of producer premiums should not be included as a loss to the government. Torlai asserts that he “would [n]ever be able to obtain [these funds] for himself through fraud or otherwise.” Essentially, Torlai contends that because he never expected to get the full amount of the indemnity—i.e., he only ever intended to obtain the indemnity less the producer premium—the producer premiums should not be calculated as part of the total loss.
The district court addressed this issue, stating:
To offset the losses in this case by any money paid by [Torlai] to purchase his crop insurance would be akin to giving an arsonist credit for the cost of insurance premiums paid by him on a house that he burned down.
That [Torlai‘s] fraud occurred in the context of crop insurance, where premiums are owed at the start of the growing season, but payable after harvest, as opposed to more traditional forms of insurance, where premiums are due upon the commencement of coverage, does nothing to change the analysis. Fraud is fraud, and [Torlai] is not entitled to credit for monies he invested in order to insure the success of his fraudulent scheme.
We have not previously considered this issue, but we agree with the district court.
Although the sentencing guidelines provide some guidance as to what factors
Torlai points to a case from the Seventh Circuit, United States v. Simpson, 995 F.2d 109 (7th Cir.1993), that suggests a farmer‘s portion of crop insurance premiums should be deducted from the calculated loss amount. Simpson is an interesting case with a few more twists than presented here; however, the core fact pattern is similar: Simpson was convicted of filing false insurance forms under the USDA‘s crop insurance subsidy programs. Id. at 110. Regarding this issue, the Seventh Circuit stated:
The district court erred when it figured the amount of loss, however, in that it failed to deduct a $74,000 premium from the $838,900 false claims. If Simpson had seen his scheme through to payment, [the insurance company] would have deducted the premium from the amount of Simpson‘s claims. As the government conceded at oral argument, the proper amount of loss was the amount of the claims minus the premium.... This clear error requires a remand so that the district judge may recalculate Simpson‘s sentence.
Id. at 113 (internal citation omitted). Thus, the Seventh Circuit has at least implicitly held that it is clear error for a district court to fail to deduct the producer premium from the total indemnity.
We do not lightly cast aside reasoned decisions of our sister circuits. See In re Taffi, 68 F.3d 306, 308 (9th Cir.1995). We disagree, however, with the Seventh Circuit‘s brief analysis in Simpson. The lack of detailed analysis on this issue may be the product of the fact that the government conceded at oral argument before the Seventh Circuit that “the proper amount of loss was the amount of the claims minus the premium.” Simpson, 995 F.2d at 113. Thus, a critical concession by the government on this issue made further analysis of this issue unnecessary by the Seventh Circuit, rendering Simpson minimally persuasive and of questionable precedent.
Considering the merits of the issue itself, quite simply, the rule that Simpson stands for—loss calculations in crop insurance fraud cases must only include indemnities minus the producer premium—overlooks basic economic reality and common sense. A farmer must pay the crop insurance producer premium regardless of whether an indemnity will be paid. The producer premium is due when the crop insurance policy is issued, and the fact that a farmer can delay payment until harvest or a valid claim is submitted for payment
Importantly, the only reason Torlai did not expect to pay the producer premium,
and expected to receive the indemnity payments net the producer premium, was because Torlai obtained crop insurance through fraud. As the district court put it, “Fraud is fraud, and [Torlai] is not entitled to credit for monies he invested in order to insure the success of his fraudulent scheme.” An honest farmer, purchasing crop insurance to hedge against agricultural risks would fully expect to pay the producer premium. As an experienced farmer with knowledge of the crop insurance system, Torlai understood that if he successfully perpetrated his fraudulent scheme, he would never have to pay the producer premium.12 Regardless, the ac-
We conclude that the district court did not err by including the total amount of the indemnities in the loss calculation.
C. Accounting for Premium Subsidies and A & O Expenses in Loss Calculation
In addition to calculating the total indemnities claimed, whether the government actually paid them or not, the district court also included in the loss calculation two other categories of expenses: A & O expenses and premium subsidies. The A & O expenses are fees the government pays to the insurance company for selling and servicing the policy. Premium subsidies are the amounts the government pays to the insurance company to underwrite the crop insurance, which the insurance company would not otherwise be willing to do. In other words, a premium subsidy is the government‘s share of the premium; it is a measure of the actual cost of having a crop insurance program above that paid by the farmer.
The district court included the totals for both categories of expenses in its loss calculation. It found that the A & O expenses and premium subsidies were “reasonably foreseeable pecuniary losses for which [Torlai] should be held accountable. Even though he didn‘t have a check cut to him, it was money that was, in effect, ... taken away from other farmers. It was, in particular the premium subsidies, not available [to other farmers].” The district court also found that there was a nonspeculative method to calculate the “premium subsidy and A & O based on documents.” Torlai argues that it was error for the district court to include these expenses, and that “the inclusion of all premium subsidy and A & O expenses as part of the loss calculation is based on an assumption that [he] was ineligible for any crop insurance policy at all.” Torlai contends that no “evidence [was] ever presented that [he] either knew about premium subsidies or A & O expenses, or that circumstances existed under which he reasonably should have known about them.”13
Contrary to Torlai‘s contention, there was evidence to support the district court‘s conclusion that the premium subsidies and A & O expenses were “reasonably foreseeable pecuniary losses for which [Torlai] should be held accountable.” Regarding the premium subsidies, the evidence showed that the premium subsidies were specifically disclosed to Torlai through his summaries of crop insurance coverage. Moreover, the government presented evidence showing that each crop
IV. CONCLUSION
For the foregoing reasons, we AFFIRM Torlai‘s sentence.
Notes
United States v. Hickey, 580 F.3d 922, 932 (9th Cir.2009) (internal citations and quotation marks omitted); see also Dillon v. United States, 560 U.S. 817, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010) (“Taking the original sentence as given, any facts found by a judge at a § 3582(c)(2) proceeding do not serve to increase the prescribed range of punishment; instead, they affect only the judge‘s exercise of discretion within that range[,] ... and the exercise of such discretion does not contravene the Sixth Amendment even if it is informed by judge-found facts.“).This argument fundamentally misunderstands the current state of constitutional law on sentencing. The relevant Sixth Amendment question is not ... whether [the district court] found facts that were not proven beyond a reasonable doubt by the jury in the process of calculating the guidelines range. Rather, the Sixth Amendment question ... is whether the law forbids [the district court] to increase a defendant‘s sentence unless the [district court] finds facts that the jury did not find (and the offender did not concede). Because the sentencing guidelines are advisory after Booker, the Sixth Amendment does not require that the loss be proved to a jury beyond a reasonable doubt.
Risk Mgmt. Agency, USDA, 2001 Crop Revenue Coverage (CRC) Insurance Policy, 01-CRC-BASIC 14 (2000); Risk Mgmt. Agency, USDA, 2002 Crop Revenue Coverage (CRC) Insurance Policy, 02-CRC-BASIC 15-16 (2001); Risk Mgmt. Agency, USDA, 2005 Crop Revenue Coverage (CRC) Insurance Policy, 05-CRC-BASIC 24 (2004).27. Concealment, Misrepresentation or Fraud
(a) If you have falsely or fraudulently concealed the fact that you are ineligible to receive benefits under the Act or if you or anyone assisting you has intentionally concealed or misrepresented any material fact relating to this policy:
(1) This policy will be voided; and
(2) You may be subject to remedial sanctions in accordance with 7 CFR part 400, subpart R.
(b) Even though the policy is void, you may still be required to pay 20 percent of the premium due under the policy to offset costs incurred by us in the service of this policy. If previously paid, the balance of the premium will be returned.
(c) Voidance of this policy will result in you having to reimburse all indemnities paid for the crop year in which the voidance was effective.
(d) Voidance will be effective on the first day of the insurance period for the crop year in which the act occurred and will not affect the policy for subsequent crop years unless a violation of this section also occurred in such crop years.
Loss shall be reduced by the following:
(i) The money returned, and the fair market value of the property returned and the services rendered, by the defendant or other persons acting jointly with the defendant, to the victim before the offense was detected. The time of detection of the offense is the earlier of (I) the time the offense was discovered by a victim or government agency; or (II) the time the defendant knew or reasonably should have known that the offense was detected or about to be detected by a victim or government agency.
(ii) In a case involving collateral pledged or otherwise provided by the defendant, the amount the victim has recovered at the time of sentencing from disposition of the collateral, or if the collateral has not been disposed of by that time, the fair market value of the collateral at the time of sentencing.
In a situation where no covered cause of loss is suffered, Farmer 1‘s bank account will show the following balance: $100 - $10 = $90. Farmer 2‘s bank account will have an identical balance: $100 - $10 = $90. The only difference is the time when the $10 premium is withdrawn. Now consider a situation where a valid claim is submitted. Farmer 1‘s bank account will show the following balance: $100 - $10 = $90 + $30 = $120. Farmer 1 pays the $10 producer premium when purchasing insurance, decreasing his bank account to $90; after Farmer 1 submits a valid claim, he is entitled to the full indemnity amount, resulting in a terminal balance of $120. Farmer 2‘s bank account will show the following balance: $100 + ($30 - $10) = $120. So, Farmer 2 would never pay the producer premium out of his own bank account, but the end result is the same. Again, the only difference is that Farmer 2 is able to have the benefit of an extra $10 in his bank account over the course of the crop season. Essentially, the government has provided Farmer 2 with an interest-free loan in the amount of the crop insurance premium. Ultimately, however, both Farmers 1 and 2 expect to receive an identical benefit from the indemnity payment. Both would be in the same economic position.
In a more complicated economic world in which there is a time value to money, Farmer 2 would be better off, since Farmer 2 had the benefit of retaining the extra $10 in his bank account for a period of time—money that he could have invested or put to other uses—and concluded at the same time with an amount identical to Farmer 1. So, if anything, the simple calculation applied by the district court understates the true economic benefit that Torlai received by waiting to pay the producer premium.