United States v. Tammy Laird ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 22-1978
____________
UNITED STATES OF AMERICA
v.
TAMMY LAIRD,
Appellant
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2:18-cr-00337-001)
District Judge: Hon. Nora Barry Fischer
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
April 18, 2023
Before: HARDIMAN, PORTER, and FISHER, Circuit
Judges.
(Filed: May 4, 2023)
Lisa B. Freeland
Stacie M. Fahsel
Samantha L. Stern
Office of the Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellant
Donovan J. Cocas
Laura S. Irwin
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Tammy Laird appeals the District Court’s judgment
sentencing her to 21 months in prison after she pleaded guilty
to wire fraud. We will affirm.
I
Laird grew up in Corsica, Pennsylvania, a rural borough
with some 357 residents and two businesses. Corsica is
2
governed by a seven-person Council that meets once a month.
In 2009, the Council hired Laird to be the Borough
secretary/treasurer—the Borough’s only paid staff position—
at $12.50 per hour. Her duties included: handling Borough
funds, opening mail, maintaining financial records, preparing
Council meeting agendas and financial reports, and updating
the Council on the status of the Borough’s finances at monthly
meetings. Laird was also the point person for Borough audits.
Finally, only Laird and the Council President were then
authorized to sign Borough checks. Though two signatures
were required, the President “common[ly]” provided Laird
with signed blank checks to avoid traveling every time a check
was needed. App. 349.
Between 2009 and 2017, Laird pilfered funds from the
Borough. She wrote unauthorized checks from the Borough’s
bank account to herself and her husband. She paid her personal
expenses by electronically transferring Borough funds. And
she used the Borough’s Staples credit card to purchase personal
items like gift cards, a computer, and other electronics. All told,
Laird embezzled $345,600.79. The Borough was so financially
devastated that it doubled property taxes to recoup some of its
losses.
Laird was indicted on 26 counts of wire fraud in
violation of 18 U.S.C. § 1343. She pleaded guilty to the
indictment without a plea agreement. The Presentence
Investigation Report (PSR) recommended two enhancements
under the United States Sentencing Guidelines (U.S.S.G.):
(1) a two-level increase under § 3B1.3 for Laird’s abuse of a
position of trust; and (2) a twelve-level increase under
3
§ 2B1.1(b)(1)(G) for loss between $250,000 and $550,000.1
After decreasing three levels for Laird’s acceptance of
responsibility, the PSR calculated a Guidelines sentencing
range of 27 to 33 months’ imprisonment.
Before sentencing, Laird and the Government disputed
whether Laird’s legitimate income as secretary/treasurer
reduced the total loss below $250,000. Laird also argued that
she did not hold a position of public or private trust. The
District Court concluded that Laird’s legitimate salary did not
reduce the total loss below $250,000, thereby triggering the
12–level increase in U.S.S.G. § 2B1.1(b)(1)(G). The Court
also applied the two-level abuse-of-trust enhancement,
resulting in an advisory Sentencing Guidelines range of 27 to
33 months in prison. But the Court varied downward,
sentencing Laird to 21 months’ imprisonment and three years’
supervised release. It also ordered $266,050.79 in restitution
(which incorporated the Government’s offset for Laird’s
legitimate income). Laird timely appealed.
II2
Laird challenges the application of the abuse-of-trust
enhancement and the District Court’s calculation of the proper
loss amount. She also faults the District Court for failing to
hold an evidentiary hearing to determine the loss. Whether a
1
While the PSR adopted the Government’s original loss figure
of $306,266.20, the parties later stipulated to a total loss of
$296,877.79. This figure included an offset of $48,723, which
Laird had repaid to the Borough during her scheme.
2
The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291.
4
defendant occupied a position of public or private trust for
purposes of U.S.S.G. § 3B1.3 is a legal question over which
we exercise plenary review. United States v. Douglas, 885 F.3d
124, 129 (3d Cir. 2018) (en banc). We review the District
Court’s factual findings underlying the abuse-of-trust
enhancement and its loss calculations under § 2B1.1 for clear
error. United States v. Dullum, 560 F.3d 133, 137 (3d Cir.
2009). And we review the court’s “refusal to grant . . . an
evidentiary hearing for abuse of discretion.” United States v.
Kluger, 722 F.3d 549, 561 n.21 (3d Cir. 2013).
A
Laird first claims the District Court erred by imposing
the abuse-of-trust enhancement under U.S.S.G. § 3B1.3.
Section 3B1.3 states: “If the defendant abused a position of
public or private trust . . . in a manner that significantly
facilitated the commission or concealment of the offense,
increase by 2 levels.” In United States v. Douglas, we set forth
a two-pronged test for applying this enhancement. 885 F.3d at
130. First, we determine whether the defendant occupied a
position of trust. Id. If she did, we then determine whether she
abused that position in a manner that significantly facilitated
her crime. Id. Laird contests only the first prong.
A defendant occupies a position of trust if a
preponderance of the evidence shows that she “had the power
to make decisions substantially free from supervision based on
(1) a fiduciary or fiduciary-like relationship, or (2) an
authoritative status that would lead [her] actions or judgment
to be presumptively accepted.” Id. at 133; United States v.
Grier, 475 F.3d 556, 568 (3d Cir. 2007) (preponderance
standard applies for all facts relevant to the Guidelines). That
framework follows the Guideline Application Note, which
5
instructs that a position of trust is “characterized by . . .
substantial discretionary judgment that is ordinarily given
considerable deference[].” U.S.S.G. § 3B1.3 cmt. n.1. Laird
opposed the application of § 3B1.3, claiming that she lacked
the necessary “decision-making power based upon a fiduciary
relationship or authoritative status.” Laird Br. 27–28. Instead,
Laird contends that the record shows at most that she occupied
a “ministerial or clerical role” in which she merely “had access
to Borough funds, was subject to lax supervision, and was
trusted in the colloquial sense.” Laird Br. 28. We disagree.
The record shows that the Council “presumptively
accepted” Laird’s actions and advice as the basis for much of
its decision-making such that she acted “substantially free from
supervision.” Douglas, 885 F.3d at 133. Laird was responsible
for setting the monthly Council meeting agenda, preparing the
financial reports presented at that meeting, and selecting
correspondence to show the Council, all without any oversight.
The Council used these documents to decide which bills to pay
and which projects to approve. So Laird’s discretionary
judgment about what financial information the Council needed
to govern the Borough received “considerable deference.”
U.S.S.G. § 3B1.3 cmt. n.1. Similarly, the Council designated
Laird as the point person for annual audits, which the Borough
relied on to apply for state funding. There is no evidence that
any other Council member reviewed her submissions or was
present at the audit exit conference. Laird thus had an
“authoritative status” when managing audits as well. See
Douglas, 885 F.3d at 133. And apart from the Council
President, Laird was the only one authorized during the
relevant period to sign checks on the Borough’s bank account.
Laird’s responsibilities as secretary/treasurer of the
Borough are thus distinguishable from the clerical
6
responsibilities of other employees in the cases Laird cites. For
example, in United States v. Tann, 532 F.3d 868 (D.C. Cir.
2008), the defendant was responsible for preparing checks for
signature and maintaining check ledgers, but she lacked
authority to sign checks herself. Id. at 870–71, 875. Similarly,
in United States v. Tatum, 518 F.3d 369 (6th Cir. 2008), the
defendant had “authority to prepare checks to present to the
owner of the company for his signature” but “was not given
authority to decide whether or not the checks should be written
or signed.” Id. at 373. Unlike those defendants, Laird was one
of two individuals authorized to endorse checks, and she
exercised significant influence over whether certain financial
information should be presented to the Council and to auditors.
Cf. United States v. Ollison, 555 F.3d 152, 167 (5th Cir. 2009)
(finding the enhancement improper when an employee
misused a company credit card that was issued to over one
thousand employees); United States v. Edwards, 325 F.3d
1184, 1185, 1187 (10th Cir. 2003) (finding the enhancement
improper when an employee handled accounts receivable but
lacked “authority to make substantial discretionary judgments
regarding company revenues or expenses”).
Laird is also distinguishable from the defendant in
Douglas, an airport mechanic, whose job did not require him
to “exercise any judgment, much less judgment that others
accepted.” Douglas, 885 F.3d at 135. As treasurer, Laird was
entrusted with the only paid staff position in local government.
And the Council relied on her judgment in presenting
documents at monthly meetings and signing checks for the
Borough.
We agree with Laird that mere access is not enough to
justify application of this enhancement. See id. But as the
Borough secretary/treasurer, Laird had the power to make
7
decisions substantially free from supervision. The District
Court did not err when it applied the abuse-of-trust
enhancement.
B
Laird next contends that the District Court erred in
finding that her embezzlement caused losses between
$250,000 and $550,000, justifying a 12-level enhancement
under U.S.S.G. § 2B1.1(b)(1)(G). A district court must make
“a reasonable estimate of the loss, based on available
information in the record.” United States v. Shah, 43 F.4th 356,
366 n.12 (3d Cir. 2022) (cleaned up). Though the Government
must prove the amount of loss, “a defendant can have the
amount of loss from a theft reduced by the fair market value of
any legitimate services [she] rendered to [her] victim.” United
States v. Scarfo, 41 F.4th 136, 213 (3d Cir. 2022) (citing
U.S.S.G. § 2B1.1 cmt. n.3(E)(i)).
Laird contests only the District Court’s calculation of
her legitimate income from 2014 through 2017. Before
sentencing, the Government obtained Laird’s federal tax
records from 2012 to 2017. Those records showed $30,827 in
legitimate income from Laird’s employment with the Borough.
The Government deducted that amount from $296,877.79,
resulting in a total loss of $266,050.79. Laird countered that
the Court should use only her Borough income from 2012,
which she reported as $19,904, and estimate her income for
2013–2017 as $8,000 per year based on Council budget
projections and meeting minutes.3 But that request
3
Laird’s income was significantly higher in 2012 because she
had worked more hours for the Borough’s sewage plant during
8
contradicted her tax returns, which reported $8,283 in 2013,
$2,640 in 2014, and no income for 2015–2017. Using $8,000
for 2013–2017, Laird’s proposed offset amount totaled
$59,904, bringing the total loss below $250,000. The District
Court concluded that the Government showed a loss amount
between $250,000 and $550,000, finding not credible Laird’s
evidence that she earned $8,000 from 2014 to 2017.
Laird argues that her tax records were unreliable
evidence of her legitimate income for two reasons. First, she
failed to report to the IRS funds she fraudulently obtained from
the Borough. Second, she reported no income for 2015–2017
even though she performed work for the Borough during that
time. We reject the fallacy Laird proffers: her failure to
disclose the money she embezzled doesn’t compel the
conclusion that she also hid her legitimate income. It would be
the unusual fraudster who disclosed her ill-gotten gains to the
Internal Revenue Service. And it would be similarly odd for an
employee not to disclose her legitimate wages. As the Court
pointed out, Laird offered no timesheets, paystubs, W-2s, or
other documents showing the actual number of hours she
worked or income she earned during the relevant period that
would have cast doubt on her tax records.
Even if Laird did some legitimate work for the Council
in the years she reported no income, the District Court
concluded that the loss still would not have fallen below
$250,000. Laird was approved to work only between 20 and 30
hours per month, at a rate of $12.50 per hour. So she would
have had to work about 53 hours a month in order to
legitimately earn $8,000 per year—an effort well above her job
that year. The Borough sold the sewage plant at the end of
2012.
9
requirements. And there was no evidence in the record that
Laird worked that much in 2015–2017. So the District Court
reasonably found that the evidence “support[ed] an annual
salary of, at most, $3,000 or $4,500 . . . [rather] than the
proffered estimate of $8,000” for the years Laird reported no
income. App. 43. And whether the minimum figure from the
tax records or the maximum $4,500 figure per year is used, the
loss Laird caused was still greater than $250,000.
Nor did the District Court err when it rejected the other
evidence submitted by Laird to establish her income. The
Council budget reports prepared by Laird projected—not
recorded—secretary payroll. And the budgets often projected
below $8,000. The District Court also reasonably rejected the
Council meeting minutes as corroboration because they did not
show the actual budget adopted by the Council at any given
meeting. We thus cannot say that the District Court’s findings
of fact about Laird’s legitimate income leave us with the
“definite and firm conviction that a mistake has been
committed.” United States v. Lowe, 791 F.3d 424, 427 (3d Cir.
2015).
Laird finally contends that the District Court should
have held an evidentiary hearing to determine her legitimate
income. But “[t]he sentencing guidelines and Federal Rules of
Criminal Procedure do not require that a district court conduct
an evidentiary hearing in addition to a sentencing hearing at
which the parties can be heard.” Kluger, 722 F.3d at 562. Here,
the parties agreed that it would be “feasible to conduct the
hearing on loss and the sentencing hearing in a single
proceeding.” App. 156. Laird had the opportunity to present
additional evidence of loss at sentencing, but she did not do so.
So the Court did not err.
10
* * *
For the reasons stated, we will affirm the District
Court’s judgment of sentence.
11