18 U.S.C. § 666 – Turtle Talk

The panel affirmed the district court’s inclusion in its loss calculation at sentencing the estimated salary paid to the defendant, the CEO of a federally-funded health care clinic located on the Chippewa Cree’s Rocky Boy Reservation, for time she spent visiting her husband when she claimed to be traveling on business. The defendant was convicted for converting federal funds for personal use, using federal funds for personal benefit, and misapplying clinic funds. The panel rejected the defendant’s argument that because she was an exempt employee, the Chippewa Cree suffered no loss in paying her full salary for when she was visiting her husband instead of performing clinic duties. The panel held that including in the loss calculation under U.S.S.G. § 2B1.1 the estimated value of the time the defendant should have reported as annual leave was not clear error. The panel addressed the defendant’s remaining arguments concerning her conviction and sentencing in a memorandum disposition

The Ninth Circuit’s unpublished memorandum decision on jurisdiction is here.

An excerpt:

Tadios first argues that the federal courts lack jurisdiction because Tadios is an Indian and the acts took place on tribal land. We review criminal jurisdiction de novo. United States v. Begay, 42 F.3d 486, 497 (9th Cir. 1994). Tadios’s argument fails in light of more than a century of jurisprudence concluding that generally applicable provisions of the Federal Criminal Code govern prosecutions of crimes committed by Indians in Indian territory. See, e.g., United States v. Kagama, 118 U.S. 375, 384-85 (1886) (finding that federal courts have jurisdiction over crimes committed by Indians on Indian territory).

Ninth Circuit Affirms Two Convictions in Tribal Embezzlement/Theft Schemes

September 9, 2015Matthew L.M. Fletcher

Here are the materials in United States v. Aubrey:

An excerpt:

For purposes of 18 U.S.C. § 1163, funds paid from an Indian tribal organization to a contractor continue to be “property belonging to any Indian tribal organization,” as long as the tribal organization maintains sufficient supervision and control of disbursed funds and their ultimate use. Accordingly, we reject William Aubrey’s contention that the evidence presented at his trial was insufficient to prove that he converted or misused property belonging to an Indian tribal organization in violation of 18 U.S.C. § 1163. We also deny Aubrey’s other challenges to his conviction and sentencing.

Here are the materials in United States v. Augare:

From the court’s syllabus:

The panel affirmed a sentence in a case in which the district court applied a “sophisticated means” enhancement under U.S.S.G. § 2B1.1(b)(10)(C) following the defendant’s guilty plea to conspiracy to defraud the United States, False Claims Act conspiracy, theft from an Indian tribe receiving federal funding, and federal income tax evasion.

The panel held that the district court did not abuse its discretion when it applied the “sophisticated means” enhancement to the defendant’s offense conduct. The panel explained that the coordinated and repetitive steps that the defendant took to transfer money from the Po’Ka project to his personal bank account are comparable in complexity and sophistication to the schemes held to warrant the enhancement in both this court’s precedent and persuasive authority from other circuits.

Seventh Circuit Affirms Bribery Conviction of Former Ho-Chunk Official

July 22, 2014Matthew L.M. Fletcher

Here is the opinion in United States v. Whiteagle:

CA7 Opinion

And the briefs:

Appellant Opening Brief

Government Brief

Reply Brief

Lower court materials here.

Pretrial Motions in US v. Mitchell — Prosecution of Former Seneca Official for Fraud

June 4, 2014June 4, 2014Matthew L.M. Fletcher

Here are the materials in United States v. Mitchell (W.D. N.Y.):

53 Mitchell Omnibus Motion

74 MJ R&R Denying Omnibus Motion

106 US Brief — Suppress

113 Mitchell Reply — Suppress

116 US Response to Motion to Dismiss — Immunity

119 MJ R&R — Immunity

120 MJ R&R on Suppression

123 Mitchell Objections to 119

126 US Response to 123

137 US Response to Motion to Dismiss — Jurisdiction

138 Mitchell Brief on Major Crimes Act

140 DCT Order Denying Motion to Dismiss

Prior federal case challenging his banishment is here.

Seventh Circuit Affirms Conviction for Theft from Sokaogon Ojibwe Tribe

April 2, 2013Matthew L.M. Fletcher

Here is the opinion:

US v McGeshik

An excerpt:

Dori McGeshick, a tribal employee, helped administer a federal grant to build 11 new homes on a Native American reservation. Tasked with acquiring appliances for the new homes, McGeshick took the opportunity to improve her lifestyle, using federal funds to buy $13,000 worth of high‐end appliances for her own home. After a bench trial, the district court convicted her of the offense of theft by an employee of an Indian tribal government, see 18 U.S.C. § 666(a)(1)(A), and sentenced her to 15 months’ imprisonment. On appeal McGeshick argues that the district court clearly erred when it found that she had abused a position of trust. See U.S.S.G. § 3B1.3. Because she was entrusted with considerable discretion and responsibility, we affirm.