Submitted October 8, 2014.
Appeal from United States District Court for the Southern District of Iowa - Des Moines.
For United States of America, Plaintiff - Appellee: Andrew H. Kahl, Assistant U.S. Attorney, Maureen McGuire, Assistant U.S. Attorney, Rachel J. Scherle, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Des Moines, IA.
Michael James Allison, Defendant - Appellant, Pro se, Duluth, MN.
For Michael James Allison, Defendant - Appellant: Gary Dean Dickey, Jr., DICKEY & CAMPBELL, Des Moines, IA.
Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
MURPHY, Circuit Judge.
After Michael Allison defrauded his employer Airgas of hundreds of thousands of dollars, the company terminated his employment and canceled his stock options. The United States charged him with mail fraud in violation of 18 U.S.C. § 1341, and he pled guilty. The district court sentenced Allison to 24 months imprisonment and ordered him to pay restitution of $560,000. Allison appeals the restitution order, arguing that his obligation should be offset by the value of his canceled stock options; the government disagrees. We affirm the order of the district court.
Allison worked at Airgas from 2000 to 2013 in various positions including vice president of finance and chief financial officer. Starting in 2003 Allison began to defraud his employer by submitting false expense reimbursement requests. He executed his fraud both by fabricating or altering documents, such as receipts and credit card statements, and mischaracterizing personal expenses as business expenses. An internal Airgas audit of Allison's expense reports, begun in late 2012, uncovered the fraudulent claims. Airgas's audit ultimately calculated that the total loss to the company was $630,350.40, and Airgas terminated Allison's employment in February 2013. Federal jurisdiction is based on his submitting expense report requests through the United States Postal Service.
During the course of his employment, Allison acquired Airgas stock options. The stock options were governed by an equity incentive plan, which provided that " [u]pon termination of [employment] for Misconduct, all outstanding Options and SARs [stock appreciation rights] held by the Participant shall terminate immediately and cease to be outstanding." The plan defined " Misconduct" as " the commission of any act of fraud, embezzlement or dishonesty by the Participant." One month after Allison was fired, an Airgas governance committee gave him an opportunity to make his own statement. Subsequently the committee concluded that Allison had been guilty of misconduct and terminated his stock options. Allison acknowledges
that the options were properly terminated under the plan.
In June 2013 Allison pled guilty to one count of mail fraud. At sentencing the district court heard testimony on the issue of restitution from Allison and from David Coyne, the vice president of internal auditing for Airgas. Coyne testified that the options had been accounted for as an expense on Airgas's balance sheets at the time they vested, so that if the options were canceled or never used, they could not be reported as income. Coyne also testified that there was no financial benefit to Airgas from cancelling the options. According to Allison, he had approximately 13,000 stock options on the date of his termination (a value of approximately $735,000 if exercised). He also claimed that the cancellation of the options created a realizable increase in value for shareholders. Allison argued that he was entitled to an offset for the amount he ...