Wednesday, September 09, 2015

United States v. Aubrey, No. 13-10510 (NR Smith with O'Scannlain and Ikuta) --- The panel affirmed a conviction under 18 U.S.C. § 1163 for embezzlement from an Indian tribe, holding that funds under the tribe's supervision and control continue to be "property belonging to any Indian tribal organization" for purposes of the statute.

The defendant was the president and most active manager of a company that contracted with the Navajo Housing Authority to build low-income housing on the Navajo reservation pursuant to grants to the tribe from the federal government.  His company got a grant to build 90 units pursuant to one of these grants, even though the government notified the tribe that it was concerned that the defendant's company wasn't using all of the money it had been receiving from the tribe for other projects exclusively for those projects.  True to form, the defendant commingled the money he received for the new project with the money in his personal account, and used the money to finance gambling debts and to buy jewelry for his wife.  Even so, he was consistently able to pay expenses relating to the housing development -- except for one subcontractor, who never got paid at all.  The government terminated its contracts with the defendant's company, and then prosecutors indicted him for embezzling money from an Indian tribe under 18 U.S.C. § 1163.

The court held that the trial evidence was sufficient to sustain the conviction.  The government had to prove that the defendant knowingly and willfully embezzled, converted to his own use, or misapplied money that belonged to an Indian tribal organization.  Here, the court ruled that money belonged to an Indian tribal organization even after it was disbursed if the tribe maintains control or supervision over the money even after it was disbursed.  Here, because the tribe had to verify that the work was completed before disbursing the money.  When the defendant failed to pay his subcontractor, and instead paid his personal expenses, a reasonable factfinder could conclude that the defendant was converting funds belonging to an Indian tribe for his own use, in violation of the statute.  Accordingly, the jury instructions were proper as well.

Summary charts produced by a government expert witness (an accountant) were admissible, and the trial judge was not required to certify the accountant as an expert.  His use of accounting techniques to prepare the summary charts simply laid foundation for his testimony as required by Fed. R. Evid. 701, and those summary charts were admissible under Fed. R. Evid. 1006 because the government had disclosed all the records on which the summary chart was based.

The decision is here:



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