United States v. Sankey , 430 F. App'x 669 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
July 12, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 10-6158
v. (W.D. Oklahoma)
VINITA H. SANKEY, (D.C. No. 5:08-CR-00294-C-2)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before MURPHY, BRORBY, Senior Judge, and TYMKOVICH, Circuit Judges.
I. Introduction
Vinita Helen Sankey appeals her conviction of eleven counts of
embezzlement and theft from an Indian tribal organization in violation of 18
U.S.C. § 1163 and her resulting sentence. She argues there was insufficient
evidence to support the convictions, and that the district court erred in calculating
the amount of loss for the purposes of sentencing, including restitution.
Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, this
*
This order and judgment is not binding precedent except under the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.
court AFFIRMS the judgment of conviction and AFFIRMS the sentence except
as to restitution. The order of restitution is REVERSED and the matter is
REMANDED for resentencing only as to restitution.
II. Background
Sankey was jointly tried with her co-defendant and husband, William Blind,
and raises similar issues on appeal. The background facts, including the evidence
introduced at trial, are more fully set forth in this court’s opinion in United States
v. Blind, No. 10-6159. Briefly, Sankey and Blind, elected tribal officials in the
Cheyenne and Arapaho Tribes (“Tribes”), were indicted on conspiracy and
embezzlement charges. Count One of the indictment charged Sankey and her
husband with conspiracy to embezzle tribal monies. Counts Seven through
Fourteen charged Sankey with embezzling tribal funds by engaging in the practice
of negotiating cashier’s checks intended for her district by depositing only a
portion of each check into the district’s account and receiving a portion back in
cash. Counts Fifteen through Seventeen charged Sankey with embezzling tribal
funds by taking advances on tribal gaming revenues intended for her district and
retaining the funds in cash or depositing them into her personal bank account.
Counts Eighteen and Twenty through Twenty-Six charged Sankey with
purchasing various items with tribal funds and failing to return them to the Tribes
or to reimburse the Tribes. These items included automobiles, a riding lawn
mower, computer equipment, and portable storage buildings.
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The jury convicted Sankey on all counts in the indictment. A Presentence
Report (“PSR”) was prepared and it calculated the amount of loss attributed to
Sankey’s conduct as $230,086.82. Sankey objected to some of the items included
in that total and the district court addressed the objections at the sentencing
hearing. The court overruled some of Sankey’s objections and sustained others,
ultimately reducing the loss amount for guidelines calculation purposes to
$218,387.82. Based on this amount, Sankey’s base offense level of six was
increased by twelve levels. See USSG § 2B1.1(b)(1)(G). Her total offense level
of eighteen and criminal history Category I resulted in an advisory guidelines
range of thirty-three to forty-one months. The court sentenced her to forty-one
months’ imprisonment, the high end of the range. The court also ordered Sankey
to pay $193,792.82 in restitution. On appeal, Sankey challenges the sufficiency
of the evidence supporting her convictions on Counts Seven through Seventeen.
She also challenges the district court’s calculation of the loss amounts used to
determine her offense level and restitution.
III. Discussion
A. Sufficiency of the Evidence
Sankey did not move for a judgment of acquittal at the close of evidence on
any of the counts she now challenges. Accordingly, plain error review applies to
Sankey’s claims of insufficient evidence in this appeal. See United States v.
Goode, 483 F.3d 676, 681 (10th Cir. 2007). Under this standard, Sankey has the
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burden to show error, that is plain, that affects her substantial rights, and that
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. A conviction on a count for which there was insufficient
evidence will generally meet the four-prong plain error test. See id. at 681 n.1
(en banc) (“[A] conviction in the absence of sufficient evidence of guilt is plainly
an error, clearly prejudiced the defendant, and almost always creates manifest
injustice.”). In reviewing whether evidence was sufficient to support a
conviction, this court examines whether a rational jury “could have found the
defendant guilty beyond a reasonable doubt,” viewing the evidence and all
reasonable inferences therefrom in the light most favorable to the government.
United States v. Flanders, 491 F.3d 1197, 1207 (10th Cir. 2007).
1. Cashier’s Checks
Sankey first challenges her convictions on Counts Seven through Fourteen,
which charged her with embezzling money from the Tribes by retaining cash
totaling $57,154.11, representing portions of negotiated cashier’s checks intended
for her district. Sankey argues the government failed to present any evidence that
the cash she received was used for anything other than lawful tribal expenditures.
To prove the allegations in these counts, the government presented bank
records of the cashier’s check transactions. As to Count Seven, the records
showed Sankey cashed two cashier’s checks payable to “Arapaho District 1 VS”
and “Cheyenne-Arapaho Tribes” totaling $82,409.51. Of that, certain sums were
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deposited into her district and payroll accounts, $5,000.00 was deposited into an
account for the Barefoot Pow-Wow, and the remainder was used to get a new
cashier’s check payable to Wal-Mart. In addition, Sankey received $2,500.00 in
cash from the checks. As to Count Eight, bank records showed Sankey cashed
another cashier’s check, also payable to “Arapaho District 1 VS” in the amount of
$62,174.00. In exchange, Sankey received a new cashier’s check for $22,174.00
and $20,000.00 in cash, and deposited the remainder into her district’s payroll
account. As to Count Nine, Sankey again cashed a cashier’s check payable to her
district, this one for $72,777.75, with which she purchased a new cashier’s check
for $54,977.75 and took $17,800.00 in cash. As to Count Ten, the records
showed Sankey negotiated another cashier’s check for her district in the amount
of $12,727.69, receiving a check payable to the Western Inn Motel for $3,294.00,
a new cashier’s check for $6,423.69, and $3,000.00 in cash. As to Count Eleven,
she negotiated a cashier’s check for $6,423.69 intended for her district by
depositing $4,023.69 into her district’s payroll account and receiving $2,400.00 in
cash.
Count Twelve is the first involving a series of transactions with related
cashier’s checks. As to this count, Sankey negotiated a cashier’s check for
$17,968.89 for her district, receiving a new cashier’s check for $15,507.89, three
smaller checks totaling $450.00, and $2,000.00 in cash. As to Count Thirteen,
Sankey cashed that new cashier’s check for $15,507.89, buying a new cashier’s
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check for $13,935.02 and several small miscellaneous checks. Several days later,
she negotiated the new $13,935.02 check and used it to purchase seventeen
miscellaneous checks, a new cashier’s check payable to the district in the amount
of $5,454.11, and $4,000.00 in cash. Finally, as to Count Fourteen, the records
showed Sankey took the entire amount of the $5,454.11 check in cash. As to each
count, Sankey was convicted of embezzling the amount she received in cash. The
government did not present any direct evidence of how Sankey spent the cash she
retained from these transactions.
Sankey argues the government’s case was supported only by inference piled
upon inference, because no evidence directly showed how the cash was used.
Specifically, she contends there was no evidence of any particular extravagant
purchases or expenditures on personal items with the cash. She further asserts
she was authorized to cash the checks on behalf of her district. Thus, although
the evidence showed she received cash, there was no evidence she
misappropriated that cash. Further, she points to evidence cash was often used by
her district for a variety of legitimate tribal functions, partly because local
vendors would no longer take tribal checks. The jury heard testimony that
Emergency Assistance (“EA”) funds were sometimes given to members of the
Tribes in the form of cash or Wal-Mart gift cards so the member would not have
to go to the casino to cash a check. Other witnesses testified Sankey’s district
used cash to pay general office expenses but did a poor job of record-keeping.
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Sankey’s sufficiency-of-the-evidence argument fails for the same reasons
as did her co-defendant’s nearly identical arguments, explained in this court’s
opinion in United States v. Blind, No. 10-6159. As this court noted,
circumstantial evidence is sufficient to sustain a conviction. United States v.
Davila, 693 F.2d 1006, 1007 (10th Cir. 1982). The very same types of
circumstantial evidence support Sankey’s convictions on these counts as support
Blind’s convictions stemming from similar cashier’s check transactions. Strong
circumstantial evidence of embezzlement of the cash was presented to the jury,
including the unusual nature of the transactions, the structuring of transactions in
an inherently untraceable way, and the circumvention of various policies of the
Tribes designed to track funds and prevent misappropriation. See United States v.
Baldridge, 559 F.3d 1126, 1141 (10th Cir. 2009) (explaining that unusual nature
of transactions designed to avoid detection can provide evidence of illegal intent).
Like Blind, Sankey maintained an account for district business and used that
account for some tribal purposes. Her failure to use the district account for other
transactions, particularly those in which she received untraceable cash, permitted
the jury to find the cash involved in those transactions were embezzled for
personal use. There is additional evidence of Sankey’s misappropriation. A
portion of the money from the cashier’s checks was deposited into an account for
the Barefoot Pow-Wow, an event no longer being held. Evidence showed Sankey
withdrew cash from the Barefoot Pow-Wow account on various occasions and
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used it to pay off her personal loans. The jury could properly consider evidence
of Sankey’s misuse of the Barefoot Pow-Wow account, into which she deposited
funds from the cashier’s checks, to support an inference that the cash she retained
from the same cashier’s checks was embezzled.
Sankey’s arguments that the cash was used legitimately because her district
distributed EA funds and conducted other office business in cash fail for the same
reasons as did Blind’s similar arguments. The jury heard ample evidence the EA
program guidelines were routinely disregarded in Sankey’s district and EA funds
were misappropriated. Accordingly, the jury was not compelled to conclude
Sankey’s use of the cash was legitimate. Finally, Sankey’s argument that she was
entitled to cash the checks as the Business Committee member representing her
district misses the mark. As explained in Davila, “because the crime of
embezzlement presupposes lawful possession, circumstantial evidence is often the
only indicium of . . . intent to convert.” 693 F.2d at 1007. Here, the jury could
permissibly infer from the evidence presented that Sankey embezzled the cash.
That conclusion required the jury to draw only one inference—that the cash was
not spent legally—not, as Sankey contends, to pile inference upon inference.
Accordingly, there was no error, much less reversible error under the plain error
standard.
2. Gaming Advances
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Sankey next challenges the sufficiency of the evidence supporting her
convictions on Counts Fifteen through Seventeen, which charged her with
embezzling advances she took from tribal gaming revenues, totaling $8,000.00.
These transactions involved money from a tribal account held by the Tax
Commission, the central financial agency of the Tribes. Sankey and Blind had
access to this account because of their membership on the Business Committee.
To prove these allegations, the government introduced Tax Commission records
of check transactions and the testimony of a Tax Commission employee. Sankey
argues the government failed to prove the advances were not repaid. She
contends the single witness who testified about the advances stated there was no
way to know how the money was spent and admitted the Tax Commission’s
records were in disarray.
The evidence as to Sankey’s conversion of the gaming advances is
sufficient to sustain her convictions on these counts. The Tax Commission
employee testified Sankey regularly took “advances” on the revenues she
expected to receive from gaming profits for her district, promising to repay those
advances in the future. The employee also testified that despite efforts by the
Commission to locate documentation of repayment, there was no evidence the
money was ever repaid. The employee also authenticated the Tax Commission
records. As to Count Fifteen, records showed a check was drawn on the Tax
Commission account in the amount of $2,500.00 made out to “Vinita Sankey.”
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Blind and Sankey signed the check on behalf of the Tax Commission. As to
Count Sixteen, records showed an identically addressed check, again signed by
Blind and Sankey, in the amount of $3,000.00. Records showed Sankey later
deposited that $3,000.00 check into her personal checking account. As to Count
Seventeen, records showed a third identically addressed check, again signed by
Blind and Sankey, in the amount of $2,500.00. Records also showed this check
was later negotiated at a bank, with Sankey depositing $2,000.00 into her
personal checking account and taking $500.00 in cash.
The aberrant nature of Sankey’s conduct is apparent on its face. Sankey
was writing checks to herself out of the Tax Commission’s account. Moreover,
the money was not deposited in her district’s account, but rather taken in cash or
deposited directly into Sankey’s personal bank account. The extreme irregularity
of Sankey’s conduct alone is enough to support the jury’s finding that she
embezzled the cash. The Tax Commission employee’s testimony that an
exhaustive search for records produced no evidence of repayment only bolstered
the government’s case. In short, as with the cashier’s checks, the government did
not have to prove exactly how Sankey spent the money. See Davila, 693 F.2d at
1007. Rather, it only had to introduce sufficient evidence to allow a jury to find
the money was converted to Sankey’s personal use. It clearly did so here.
B. Sankey’s Sentence and Restitution Order
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Sankey next challenges her sentence as procedurally unreasonable, arguing
the district court erred in calculating the total amount of loss, $218,387.82, used
to set her offense level under the sentencing guidelines. She further argues the
district court erred in calculating the $193,792.82 amount of restitution she was
ordered to pay.
1. Cashier’s Checks and Gaming Advances
Sankey first argues the district court erred by including losses from the
cashier’s check scheme and the gaming advances, described above, in the
guidelines and restitution loss calculations. At sentencing, Sankey objected to the
inclusion of these amounts on the basis that the government introduced
insufficient evidence to prove the amounts. Her objection was essentially the
same as her sufficiency-of-the-evidence argument as to those counts, i.e., the
government never showed at trial how the cash was spent and some evidence
showed legitimate district business was conducted with cash. Sankey now argues
the district court’s factual findings as to these losses were inadequate under Fed.
R. Crim. P. 32(i)(3)(B) and that there was insufficient evidence to prove the loss
amount for sentencing purposes, rendering the district court’s inclusion of these
losses clearly erroneous.
Although Sankey objected to these loss amounts as stated in the PSR, she
never objected to the adequacy of the district court’s factual findings at the
sentencing hearing. Accordingly, the adequacy of the factual findings is reviewed
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for plain error. See United States v. Cook, 550 F.3d 1292, 1297-98 (10th Cir.
2008). Sankey cannot show the district court plainly erred. The loss amounts of
which she complains were directly based on the amounts Sankey was convicted of
embezzling in Counts Seven through Seventeen. In response to Sankey’s
objections to the loss amounts, the district court overruled the objections,
explaining they were “precluded by the jury’s verdict.” Because Sankey’s
objections at sentencing to these loss amounts in essence attacked the sufficiency
of the evidence supporting her convictions of embezzling those amounts, the
district court’s explanation that the jury’s verdict established the loss amounts
was an adequate explanation.
Sankey’s argument that the factual findings themselves were clearly
erroneous also fails. Factual findings of loss, when preserved by timely objection
below, are reviewed for clear error. United States v. Mullins, 613 F.3d 1273,
1292 (10th Cir. 2010) (relating to guidelines calculations); United States v.
James, 564 F.3d 1237, 1243 (10th Cir. 2009) (relating to restitution). Sankey’s
argument on appeal is again limited to her assertion the government did not
present any evidence of how she spent the cash she received from the various
transactions, and thus the evidence was insufficient to support the loss amounts
found by the district court. As explained above, however, the government
presented sufficient evidence at trial to support her convictions on Counts Seven
through Seventeen, including the actual bank records from which it was shown
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Sankey received cash payments and the amounts of those payments. Accordingly,
the district court’s findings at sentencing, which were applied both to the amount
of loss used to calculate Sankey’s advisory guidelines range and to the calculation
of restitution, are not clearly erroneous.
2. Travel Reimbursements
Next, Sankey challenges the inclusion of $11,635.46 in her total loss
amount attributed to improper travel reimbursements from four separate trips. 1
The government argues Sankey failed to object to these loss amounts below and
thus did not preserve the issue for appeal. The government admits, however, that
these loss amounts were erroneously included because the government did not
present evidence to support them.
Even assuming Sankey properly objected below, any error is harmless as to
the calculation of her advisory guidelines range. See United States v. Wilken, 498
F.3d 1160, 1169 (10th Cir. 2007). The district court found Sankey’s total loss
amount to be $218,387.82; under the guidelines, the same increase in offense
level applies to loss amounts between $200,000 and $400,000. See USSG §
2B1.1(b)(1). If Sankey’s loss amount is reduced by the $11,635.46 of erroneously
included travel reimbursements, her total loss amount would be $206,752.36, still
1
The travel reimbursements were listed as pertaining to the National Indian
Education Conference, the Bingo World Conference, the National Congress of
American Indians, and the Global Gaming Expo.
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above the $200,000 cutoff. The error thus did not affect the calculation of
Sankey’s advisory guidelines range.
Based on the same travel reimbursement allegations, however, the district
court ordered Sankey to pay the same amount in restitution. Under the Mandatory
Victims Restitution Act, a restitution order that the government concedes exceeds
the loss caused by the defendant is an illegal sentence constituting plain error.
James, 564 F.3d at 1243; United States v. Smith, 156 F.3d 1046, 1056 (10th Cir.
1998). Thus, even if Sankey did not preserve her objection to the restitution
amount, as the government argues, the inclusion of that amount is plain error
because the government concedes it was not supported by any evidence. See
Smith, 156 F.3d at 1056 (vacating under plain error standard restitution amount as
to which government admits it did not present evidence below). Accordingly, the
restitution order is reversed as to the $11,635.46 pertaining to the four identified
travel reimbursements.
IV. Conclusion
For the forgoing reasons, Sankey’s convictions are AFFIRMED, her
sentence is AFFIRMED except as to restitution, and the restitution order is
REVERSED. The matter is REMANDED for resentencing as to restitution only.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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