ma'am please the court my name is stephen potts and i have been substituted as counsel in this case for mr jeff foster who wrote the brief in who unfortunately passed   added four points because these crime according to the court involved more than ten thousand dollars and the reason the weight of the court got i should back up in this case primarily involved expenses that were either charged on a credit card or paid by the government and the government's contention was that the defendant had used that money essentially to visit her husband on personal business the way that the court got to over ten thousand dollars so was by adding a value in four of the value of her time  approximately she otherwise i as i understand the record was required to submit some sort of time record in other words if she took sick leave or the apparently vacation she was supposed to fill out a leave slip yeah that's my understanding wreck and the evidence was that she didn't do that for the time that she spent visiting her husband she she treated it as if it was all part and parcel of her business travel and she didn't treat it as an annual leave in any event i think the argument you made was that the government didn't lose anything right says she's entitled to her salary she would be paid either way or she would be paid but if you take any typical government worker who has six to leave and they accumulate more if they don't take it and that means that even though they get paid they don't have to show up in other words the government doesn't get their services that day well if she's so if she hasn't accounted for the days where she's supposed to show up because she just took an unaccountable vacation isn't that a loss of services to the government well the problem the problem with that is that everyone the something that her employer does things the same way that i think that the federal government does and i think it's complete speculation from what i but hell is there anything in the record that tells us for example whether you're paid for unused vacation time when you separate from service i do not think there is  would refer the court to the government supplemental excerpt or record page three thirty eight so i could just quote one sentence that is the prosecutor saying quote i don't have the testimony or the law or anything like that to say you know she's going to get her annual leave but i think the court can apply its own common sense and say that in employee whether he or cruz when he or she are pros and you're leaving the entitled to be compensated for that an leave when they terminate services and quote it was just a guess so let's take what we do know and then we need to figure out is that enough ok so we do know that she's supposed to turn in a leave slip correct  i think as i understand it was a to some kind of time time sheet time she'd write but we also know from the credit card situation that if she's going to be visiting her husband or whatever she's supposed to advise that she's taking leave not that she's just having a day where she goes and visits him so isn't that in the record that she's supposed to advise if she's taking leave i think she's supposed to put something something to the effect of leave on her time she ok so if she's supposed to put leave on our time we do know that we also know  that she could if she had extra leave days ultimately cash that in is that in the record no i do not believe so count counts i'm a little bit confused on your ten thousand dollar argument i have a note here that the travel funds totaled eleven thousand two hundred forty eight dollars and seventy nine cents i think it i did i don't think it was that high on i didn't just pull it out of the air ok it came out in the record somewhere i mean the ten thousand dollars as i understand it is the federal jurisdiction alone now for the federal funding supplied to the tribe and there was evidence that the tribe got fourteen million a year from the united states i think know i think that i think the total including the the time in the expenses was it was it was well i go to page nine of the government's brief well i m it's not helpful to cite to brief when i'm looking for evidence i rarely find evidence in brief well what my understanding is that  the total travel expenses were approximately they were exhibit seventeen eighteen nineteen you don't think that that shows anything with respect to the way her time away from government service was accounted for no i don't think it i really don't know how it was accounted for once she submitted the time sheet there's i don't think there's any evidence as i understand the record well what what about the can the district court factor into the loss consideration in essence theft of government service for time that she was actually on personal time when she was supposed to be on the employer's could the district court properly include that time and monetary harm to the employer well i don't think so because it's my understanding again that she was if she did any work in a particular to the title be paid so even if she only worked an hour is that your position yes well that's but i didn't make sense because i thought hurt her testimony had knowledge  that she was that she was supposed to put in these time leave slips correct so i mean there was testimony to the right so that's that testimony is in the record and it seems that the defense's argument rests on the fact that well no harm no foul because she's going to get paid anyway but that doesn't account for why individuals put in records for taking leave otherwise you could argue there'd be no prosecution on that at all because she could basically visit her husband one hundred percent of the time and not work at all and it wouldn't matter could she get paid anyway therefore no loss to the government i mean that's the extension of your argument is no because there's all these expenses that the government alleged that you know she say regardless of the time the government contended there was there was fast well can you help me then understand why i shouldn't apply the second circuits decision in united states versus burns that was the case involving second circuit found that it was proper for the district court to compute in essence the theft of time in the south was in the amount of a loss why doesn't that meet the commonsense rule here you know i'm not as familiar with the case you don't think well there's two issues one would her expenses alone get her over the ten thousand and which case is what kind of the icing on the cake if they wouldn't get her over the ten thousand year point is that you don't think there's enough evidence in the record beyond the time sheets to show what the system was is that correct yes ok it just did time sheets and the district court departed downward did not follow the sentencing go ahead yes so as a practical matter even if you've got the two points off the guideline range still would have been higher than what  yes which with credit for time off gives her almost ten months actual custody assuming she keeps her nose clean right yes fifty four days a year yes so if  given are ten months she went to got any good time credits but if she got a year and a day so it's still pretty close and i suspect that that's why the judge gave her twelve months is going to break into giving her a break not only deadline break but also a calculation right correct right i can't say he's a bad guy he's i mean nobody nobody nobody is suggesting he's a bad guy that you have total you know right to just see if there's any other leeway in the so hard that your argument is no harm no foul that's certainly one of them ok but i don't believe there was any harm but can you help me on the great mystery surrounding eleventh certainly certainly judge if you will true in my brief i have  cites to the record a supplemental excerpt the record and i believe that if you take out the pay the salary entirely may be just a bit below the ten thousand but my nine thousand i mean within one hundred dollars it's possible to get there but that was giving her all sorts of credit for for anything that could have been arguable the agent backed out anything that would even be for example any of the travel to to new orleans for the conference all that was backed out because except for the days that she spent missing or has been eaten so i thought we were being relatively generous with the defendant but we still insist on on our position that  fact that she did receive annual leave was required to take annual leave it does have value as is the leverage mccune was alluding to the we wouldn't win the government any government tribal government federal government pays for an employee services that has value and the exhibits that were introduced at sentencing were the time sheets they're attached to are sentencing memo i'm afraid i couldn't pull up my supplemental excerpt the record to say what those attachments are but they're in the record which indicate clearly that sheep would always put down eight hours of travel when she went to visit her husband and there was a place for annual even in fact on some of the documents she donated annual leave which means that it has value she was giving other people the ability not to show up to work and be compensated for their time so there's nothing the argument i think was made is yes she turned in time she bought and basically the judge or you or us or anyone else is speculating what does that mean circumstantial but if you have time sheets that indicate that you have any will even you got it in your giving it away that it has value of some kind that even a bit above and beyond the very basic principle that they governments pay their employees to work not to travel and it was an issue that was entirely rejected by the jury because it was they tried to bring it out in defense that because she was of the nature of her her position was that it just as you said she could work one day a week and as long as she worked one day that was enough she's entitled to her whole salary well let me ask you this because she's a exempt employee and she works extra hours she doesn't get any money right that's true think a lot of travel ability so do you have forty hour week forty hour week pay period but then if she work sixty hours she still gets paid for twelve forty hours that either so if she takes an extra day off there's no at the fifty five dollars an hour even if you were to discount that some you might come up with a different number right you could your honor but i wouldn't so i would assert to the court that there would have to be a process for for that some someone would have to say geez fun you worked all weekend you don't want to take a couple of admin days off and that would have to be reflected in record somewhere to otherwise you're just speculating that she ever worked more than you well  the absolute number of fifty five dollars an hour assumes right to forty hours a basic pay raise a rate yes ma'am and the question is whether that assumption which is not really based on any evidence in the record in terms of how the system works whether that is sufficient sustain the sentencing calculation you're right your honor other than it's just like again we get back to the common sense of it you take a salary you divide up the number of work hours in a work year and that you're your hourly rate so could i switch shift gears totally and hear your thoughts on the issue on the jury instruction on the defense theory of the case in adequacy of that instruction in light of the intent to defraud versus defendants action in honest intention i was concerned as to whether your perspective  it your honor our position was that we did we did not that the requirement that we prove an intent to defraud was was sufficiently antithetical to a good faith defense that she fully explored during the trial that the jury could not have found a intent to defraud if there had been good faith certainly you can add a good faith instruction and some courts do but i think judge morris was correct when he said that they adequately cover it because the level of our proof responsibility completely eclipses any any good faith argument and certainly she was fully free to argue that it wasn't like there was no there was any  inhibition of the argument it's just that the jury was not given something special instruction that said if you find good faith but i think judge moore says felt that that was over you know it was unnecessary in the face of what the government was the jury was being told the government had to prove among the other issues that i'd like to explore is her argument that once these funds were turned over to the tribe that there was a certain amount of discretion in her in terms of how they used them and the sort of notice to the board of what she was doing and permissions so therefore this internal oversight really can supersede what might be viewed as a normal or traditional scrutiny of government fine your honor i think that would have some some resonance had it not been the fact that the the paperwork was falsified had had it been on there that that the reason i'm taking this is to go visit my husband in prison and that is clear from it and when they sign off on proof as approved that they're signing off saying i'm going to go visit jake down in yankton and that's not a business related  enterprise then i think that you might have some salience in saying well it was approved even though it was improper it should not have been approved they approved it but to the extent that she falsified the paperwork to include site visits to suggest that the reason she was going was to enhance her job description by looking at other i gess or medical clinics i think that's where where that argument would fail and i guess they did have a system where you could set up deductions that would be taken out tram adoptions and she didn't yes they didn't follow through and there was a there was a number of what we might consider odd for example the the pay back in the withdrawal of for  other travel that was a big issue that she was paying it back but we established a trial and certainly at sentencing that what that was she was making payments back for previous to the trips to  yankton for example if a travel employee needs to go to a conference in missoula and they were going to be there for three days and they go in there and they come back after only two and i only have two nights of would tell rather than three well then they owe the tribe money back because none of them none of the tribal employees generally go on their own dime and get reimbursed they get advances and so the paying back or the pay willed withholding is to pay back money you've already received and it had nothing to do with the if the court has no other questions i'd be happy to turn it back over to mr pot thank you thank you if regard to the sentencing then i think it's there really isn't there there really isn't any evidence after the fact that she should have she should have said leave on our time she don't know what happened with the leave and we really don't know the value of what we know she didn't time soon claim in the annual leave for time that the government proved she was actually engaged in personal activities the visit her husband when she falsely told the board she was actually visiting indian health clinics in the region isn't that the problem here i can't say that i can say that again yes sure i mean it seems to me the problem with your argument is that  fact that she falsely claimed on the justification for the travel that she was actually visiting indian health clinics in the vicinity of the yankton federal prison camp when in fact she was visiting her husband well that's true but i mean to me that goes to her towards joe i mean in the sensing argument we're assuming she's guilty though we're just calculating the sentence i thought there was testimony from the two of the board members that we would never have approved the reimbursement for that travel had we know that may be true but again this is the salary district court then infer from that that she was also in essence taking time that she should have submitted annual leave slips so that the employer was harmed both by paying for travel expenses that had no obligation to pay and paying or for a time when she was supposed to be working and i go back to the theory of the burns case which i think supports the government's theory of prosecution ok there's still no showing of what the value of the time was so what's unreasonable about dividing the annual salary by two thousand and eighty hours to come up with an hourly pay rate if that's exactly what she works in if she gets a certain amount of leave that she's there but we know she did that's the problem we know that she in essence charged her employer on company time for time when she was devoting to personal business well let's just assume she could work eighty hours a week as he said at one point when he met really forty hours a week so i'd be half that it would still put her over the ten thousand wouldn't i mean nobody would suggest we're going to i was assume she were compensated at half the rate twenty five dollars an hour because she she did work an eighty hour week every week you'd have to get pretty low in the hourly rate to not put her over the ten thousand dollars at least according to the chargen the government's brief yes unless she's entitled to it unless she's not entitled to be compensated for the leave when she leaves the employment in the leave has no value when the leave has value doesn't end in the sense it permits or if if you don't use up your leave you can have another day off or you don't have to give service to the government you can go play on your day off that's an absence of service to go right but all we can really do is speculate about whether that's the case or not and ok thank you thank you i think  have your point in mind i'd like to thank both of you for your arguments this morning and wish you speedy and safe travel make your next montana