United States v. Patricia Sledge

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 11, 2019
• Docket: 17-50363
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50363

Plaintiff-Appellee, D.C. No. 8:12-cr-00234-JVS-1 v.

PATRICIA DIANE SMITH SLEDGE, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Submitted March 7, 2019** Pasadena, California

Before: M. SMITH and OWENS, Circuit Judges, and SETTLE,*** District Judge.

Patricia Sledge appeals from her jury conviction and sentence for mail fraud,

in violation of 18 U.S.C. § 1341, and witness tampering, in violation of 18 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Benjamin H. Settle, United States District Judge for the Western District of Washington, sitting by designation. § 1512(b)(3). Sledge, a sales associate for American Family Life Assurance

Company (“AFLAC”), orchestrated a large-scale insurance fraud scheme. As the

parties are familiar with the facts, we do not recount them here. We affirm.

1. There was sufficient evidence to support Sledge’s two witness

tampering convictions under 18 U.S.C. § 1512(b)(3). Section 1512(b) prohibits,

among other things, attempting to “corruptly persuade[]” a witness to lie to

investigators. 18 U.S.C. § 1512(b). This language encompasses “non-coercive

attempts to persuade witnesses to lie to investigators.” United States v. Khatami,

280 F.3d 907, 914 (9th Cir. 2002). Viewing the evidence in the light most

favorable to the prosecution, a rational trier of fact could have found that Sledge

attempted to corruptly persuade the two witnesses to lie to investigators.

See United States v. Pelisamen, 641 F.3d 399, 409 n.6 (9th Cir. 2011) (setting forth

sufficiency-of-the-evidence standard of review).

2. The district court did not abuse its discretion by admitting Exhibit 1, a

spreadsheet summarizing the insurance policies and claims generated by Sledge

that AFLAC identified as fraudulent. AFLAC analyst Susan Gonzales testified

that she created the spreadsheet, which pulled data from an AFLAC database of

policy and claims information, at the request of an AFLAC investigator as part of

the company’s internal investigation. The district court admitted Exhibit 1 under

Federal Rule of Evidence 1006, which allows for summary charts of voluminous

2 records. See Fed. R. Evid. 1006; United States v. Rizk, 660 F.3d 1125, 1130 (9th

Cir. 2011) (discussing Rule 1006); see also Fed. R. Evid. 803(6) (records of

regularly conducted activity are not hearsay).

Contrary to Sledge’s contention, Gonzales had personal knowledge of the

spreadsheet as its creator. Gonzales’s lack of personal knowledge about whether

the summarized policies and claims were in fact fraudulent affects the weight of

Exhibit 1, not its admissibility. See Rizk, 660 F.3d at 1131 n.2.

Further, admission of Exhibit 1 did not violate Sledge’s Confrontation

Clause rights because the spreadsheet was not based on any hearsay from the

AFLAC investigator. Gonzales only mentioned the investigator to explain why

she prepared the spreadsheet (i.e., its effect on the listener), not for the truth of any

statement by the investigator. See United States v. Payne, 944 F.2d 1458, 1472

(9th Cir. 1991) (holding that challenged testimony was not hearsay because it was

properly admitted to show its effect on the listener, rather than the truth of the

matter asserted).

3. The prosecutor did not engage in misconduct by referring to Exhibit 1

in closing argument. The record shows that the prosecutor correctly described

Exhibit 1 as summarizing the policies and claims that AFLAC had identified as

fraudulent. Moreover, aside from AFLAC’s identification, there was independent

evidence in the record supporting the notion that the policies and claims listed in

3 Exhibit 1 were in fact fraudulent.

4. Finally, during sentencing, the district court did not clearly err in

finding that the amount of loss attributable to Sledge’s fraudulent scheme was over

$4.1 million, resulting in an 18-level enhancement under U.S.S.G § 2B1.1(b)(1)(J).

See United States v. Garro, 517 F.3d 1163, 1167 (9th Cir. 2008) (“A calculation of

the amount of loss is a factual finding reviewed for clear error.”). Likewise, the

court did not clearly err in ordering restitution of over $4.1 million under the

Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A(c)(1)(A)(ii).

See United States v. De La Fuente, 353 F.3d 766, 772 (9th Cir. 2003) (stating that

factual findings supporting a restitution order are reviewed for clear error).

AFFIRMED.