United States v. Island , 316 F. App'x 804 ( 2009 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    March 19, 2009
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    FOR THE TENTH CIRCUIT                 Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                  No. 08-6111
    (D.C. No. 5:07-CR-00049-C-1)
    RENEE ISLAND,                                      (W.D. Okla.)
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before McCONNELL, McKAY, and GORSUCH, Circuit Judges.
    Renee Island appeals from her conviction for conspiracy and
    embezzlement. On appeal, she argues that because the jury found her guilty
    of misdemeanor embezzlement, her conviction for felony conspiracy should be
    vacated and reentered as a misdemeanor, and in any event, the evidence
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and
    collateral estoppel. It may be cited, however, for its persuasive value consistent
    with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    was insufficient to support the verdicts. We have jurisdiction under 
    28 U.S.C. § 1291
    , and we affirm.
    Background
    The Cheyenne and Arapaho Indian Tribes of Oklahoma (Tribes), are a
    federally recognized Indian Tribal Government headquartered in Concho,
    Oklahoma. The Tribes, which are governed by a business committee consisting
    of eight elected officials from six districts, opened the Lucky Star Casinos in the
    1990s. Federal law prohibits the distribution of net tribal gaming revenues for
    any purposes other than those set forth by statute. 
    25 U.S.C. § 2710
    (b)(2)(B).
    In 2001, Ms. Island was hired as a secretary/assistant by Robert Tabor, the
    chairman of the business committee and elected representative of Arapaho
    District A-2. Initially, the committee used a single checking account for net
    gaming proceeds from which any of the eight members could write checks.
    Later, the committee implemented a system by which its treasurer and Cheyenne
    District C-4 representative, Eddie Whiteskunk, would divide the proceeds among
    individual committee members, including himself and Mr. Tabor.
    Beginning in 2002, Ms. Island worked exclusively for Messrs. Whiteskunk
    and Tabor and ran their offices on a daily basis. Part of her duties included
    writing checks from their respective gaming proceeds checking accounts to tribal
    members who needed financial assistance – authorized expenditures under
    § 2710(b)(2)(B). During this same time and on trips to Las Vegas, Nevada,
    -2-
    and Albuquerque, New Mexico, Ms. Island obtained money from those checking
    accounts (wire transfers) for her and others’ personal use, which formed the basis
    of her ensuing indictment for conspiracy and embezzlement. The evidence was
    that she obtained more than $15,000 that was later divided among the
    participants. Following a two-day trial, the jury found her guilty of five counts of
    embezzlement of less than $1,000 under 
    18 U.S.C. § 1163
    , and one count of
    conspiracy to commit an offense against the United States under 
    18 U.S.C. § 371
    . 1
    Sufficiency of the Evidence
    We address first Ms. Island’s argument that the government failed to
    produce sufficient evidence to support her convictions.
    The standard of review makes it difficult to prevail on a sufficiency
    of the evidence claim[,] . . . [because] [a]lthough we review the trial
    record de novo, we do not reverse if, after viewing the evidence in
    the light most favorable to the prosecution, any rational trier of fact
    could have found the essential elements of the crime beyond a
    reasonable doubt.
    United States v. McPhilomy, 
    270 F.3d 1302
    , 1307 (10th Cir. 2001) (internal
    citation and quotation marks omitted). “In so doing, we resolve any possible
    conflicts in the evidence in favor of the government and assume that the jury
    found that evidence credible.” United States v. Doddles, 
    539 F.3d 1291
    , 1293-94
    (10th Cir. 2008).
    1
    Ms. Island neither testified nor called any witnesses at trial. She did move
    for a judgment of acquittal on all counts at the end of the government’s case.
    -3-
    Ms. Island’s argument with respect to the conspiracy charge is that there
    was no agreement; instead, “[s]he just did what she was told, by those who
    had authority over her job and over the money.” Aplt. Br. at 22. She compares
    her conduct to that of the defendant in United States v. Butler, 
    494 F.2d 1246
    (10th Cir. 1974). The facts are strikingly different. Mr. Butler was an airman
    who served under Sergeant Greene. Sergeant Greene and others entered into a
    conspiracy to procure equipment for their own use from a storage facility. After
    deciding that he personally could not use a number of radios that he had obtained,
    Sergeant Greene brought them to the shop where Airman Butler worked and “left
    them there with the understanding that anyone who wanted one could have one.”
    
    Id. at 1248
    . Airman Butler took one radio to his room, where he uncrated,
    examined, and repacked it, and put it in his locker. He was transferred a short
    time later and left the radio behind without any instructions as to its disposition.
    In reversing Airman Butler’s conspiracy conviction, we held
    [n]owhere in the record can we find testimony implicating him in a
    conspiracy. This court has often noted that the essence of the crime
    of conspiracy is an agreement to violate the law. While the
    agreement need not take any particular form, there must at some
    point be a meeting of the minds in the common design, purpose, or
    object of the conspiracy.
    
    Id. at 1249
     (citation omitted). Unlike Airman Butler’s case, there is ample
    evidence there was a meeting of the minds between Ms. Island and her
    co-conspirators – she knew the purpose and objective of the conspiracy, agreed to
    -4-
    it, and actively participated in achieving its goals by obtaining money for herself
    and others.
    As to embezzlement, Ms. Island argues “[t]he ‘embezzlers’ in this case
    were Tabor and Whiteskunk, . . . who were looting the Tribe’s casino proceeds.
    [They] . . . had authority to acquire and access the money. They used Island
    as [an] instrument to do so. Thus, Island was one step removed from the
    embezzlement chain, so to speak.” Aplt. Br. at 23. 2 This is like arguing that
    participants in a theft ring who deliver the stolen goods to the ring leader for
    distribution are not guilty of theft because they are the underlings. We reject this
    legal argument as lacking merit.
    Felony Conspiracy
    Ms. Island claims that because the jury found on each of the five counts of
    embezzlement she obtained less than the amount required for felony
    embezzlement, her conviction for felony conspiracy should be converted to
    misdemeanor conspiracy. We review this question of statutory interpretation
    de novo. United States v. Youts, 
    229 F.3d 1312
    , 1316 (10th Cir. 2000).
    We reject this argument under a plain reading of the conspiracy statute,
    which provides that
    [if] two or more persons conspire either to commit any offense
    against the United States, or to defraud the United States, or any
    2
    Messrs. Tabor and Whiteskunk could not legally access the money for their
    personal use but only for the purposes in 
    25 U.S.C. § 2710
    (b)(2)(B).
    -5-
    agency thereof in any manner or for any purpose, and one or more of
    such persons do any act to effect the object of the conspiracy, each
    shall be fined under this title or imprisoned not more than five years,
    or both.
    If, however, the offense, the commission of which is the object of the
    conspiracy, is a misdemeanor only, the punishment for such
    conspiracy shall not exceed the maximum punishment provided for
    such misdemeanor.
    
    18 U.S.C. § 371
     (emphasis added).
    The statute requires the courts to examine the offense that is the object of
    the conspiracy to determine whether the conspiracy is a felony or misdemeanor.
    As such, we agree with the district court’s conclusion that
    [t]he fact that the jury found Ms. Island guilty of embezzlement of a
    sum less than $1,000 has no real bearing on whether the jury found
    guilt on the felony conspiracy charged in the indictment. It is a
    separate crime. It is a charge of conspiring to violate the laws of the
    United States, not to embezzle money from the Cheyenne & Arapaho
    tribe. The overt acts alleged in support of the conspiracy allege that
    a sum in excess of $15,000 was the object of the conspiracy. That is
    clearly a felony.
    R. Vol. 1, Sentencing Hr’g at 5. See generally United States v. Gallup, 
    812 F.2d 1271
    , 1277 (10th Cir. 1987) (holding that because “[i]t is axiomatic that [the
    defendants] could have been prosecuted for conspiracy without ever having
    -6-
    committed a substantive crime,” they could be charged with felony conspiracy
    and misdemeanors).
    The judgment of the district court is AFFIRMED.
    Entered for the Court
    Monroe G. McKay
    Circuit Judge
    -7-
    

Document Info

Docket Number: 08-6111

Citation Numbers: 316 F. App'x 804

Judges: McConnell, McKay, Gorsuch

Filed Date: 3/19/2009

Precedential Status: Non-Precedential

Modified Date: 10/19/2024