In U.S. v. Tampas, No. 06-12051 (July 26, 2007), the Court reversed the restitution order but affirmed the convictions of a defendant convicted of defrauding the Valdosta-Lowndes County, Georgia, YMCA – of which he was President and Executive Director. The scheme involved using YMCA moneys to pay for extensive renovations at Tampas’ home.
The Court rejected a sufficiency of the evidence challenge to the convictions, pointing to the handwritten time slips the contractor used in lieu of invoices. The Court also noted that the YMCA Board did not approve the use of the YMCA American Express for Tampas’ personal expenses. The Court also affirmed the conviction for misleading conduct in violation of 18 U.S.C. § 1512(b), pointing out that Tampas asked an employee to prepare fraudulent spreadsheets to hide the fraudulent work.
The Court rejected Tampas’ indictment "constructive amendment" argument. Tampas claimed that he was convicted for much smaller dollar amounts than those listed in the indictment. The jury instructions did not change the elements of the offenses charged in the indictment, and did not have to specify the exact amounts involved.
The Court also rejected Tampas challenge to the admission, as unduly prejudicial, of evidence that the YMCA had a large amount of unpaid taxes. The Court noted that this evidence was not admitted to prove Tampas’ culpability, and that, in any event, he was aware of the failure to remit taxes.
The Court also rejected challenges to improper prosecutor statements, finding them to have been cured by the court’s instructions. The Court also rejected a challenge to the trial court’s statement "Why can’t the defendant testify about that?," noting that the court offered a curative instruction and that this question had no effect on the jury.
Turning to the sentence, the Court affirmed the obstruction of justice enhancement based on the creation of misleading spreadsheets. The Court also found no error in the loss amount computation in view the district court’s stated intent to impose its sentence under § 3553(a).
For restitution, however, the Court reversed the order which required Tampas to pay YMCA the amount of its unpaid payroll taxes. The Court noted that the government never proved that Tampas’ embezzlement caused the YMCA to fail to pay payroll taxes. The Court noted Tampas preference that the case not be remanded to the district court for resentencing, so that the government could prove other losses to the YMCA, but rejected this request, noting his failure to cite caselaw supporting his "no two bites at the apple" sentencing argument.
