United States v. Blind

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. 10-6159
v. (W.D. Oklahoma)
WILLIAM F. BLIND, JR., (D.C. No. 5:08-CR-00294-C-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before MURPHY, BRORBY, Senior Judge, and TYMKOVICH, Circuit Judges.
I. Introduction
William Blind appeals his conviction of eight counts of embezzlement and
theft from an Indian tribal organization in violation of 18 U.S.C. § 1163 and his
resulting sentence. He argues there was insufficient evidence to sustain his
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 court AFFIRMS the judgment
*
This order and judgment is not binding precedent except under the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.
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
The Cheyenne and Arapaho Tribes (“Tribes”) operate a single government.
Under the Tribes’ Constitution in effect at all relevant times, the voting members
of the Tribes were divided into six districts. Four Cheyenne districts elected one
Business Committee member each and two Arapaho districts elected two members
each. The Business Committee members were the highest-ranked elected
officials, running the Tribes’ government and business activity. Blind was an
elected member of the Business Committee, representing the Arapaho 1 District
(“A-1 District”). Blind’s wife and co-defendant, Vinita Sankey, was also a
Business Committee member representing the A-1 District.
The tribal government administered programs primarily with funding
received from the federal government and, more recently, with revenues from its
operation of casino gaming venues. The use of federal funds was closely
monitored by the Bureau of Indian Affairs (“BIA”) because the Tribes had been
placed on “high risk” status based on mismanagement. The Tribes’ expenditure
of gaming revenues was governed by the Indian Gaming Regulatory Act
(“IGRA”) and monitored by the National Indian Gaming Commission, rather than
the BIA. Under IGRA, profits from gaming may only be spent in five ways: 1) to
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fund tribal government; 2) to provide for the general welfare of the Tribes; 3) to
promote economic development; 4) to make charitable contributions; and 5) to
assist local governments with their operations. 25 U.S.C. § 2710(b)(2)(B).
At the outset, gaming revenue was directed to the Tribes’ finance office,
which was a central office that processed checks for all Business Committee
members. Tribal checks, however, sometimes bounced. As a remedy, the
Business Committee passed a resolution directing the gaming revenues to be
apportioned and transferred directly to each district representative for
administration. Thereafter, Business Committee members, including Blind, had
complete control over the gaming revenues apportioned to them for their districts.
Gaming revenues funded, among other things, the Emergency Assistance (“EA”)
program, which provides financial assistance to tribal members for food, utilities,
and other specified emergency needs. The EA program was designed to comply
with the IGRA and a tribal resolution specified that checks for the disbursement
of EA funds were to be made out only to the vendor of services for which the
check was issued. There was high demand for EA funds because most tribal
members were extremely poor.
In addition to the IGRA’s and BIA’s restrictions on the use of gaming and
federal funds, respectively, the Tribes had adopted many of their own procedures
and policies designed to prevent fraud or abuse, which applied to all tribal
expenditures. One such policy involved a resolution adopting the General
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Services Administration’s guidelines for travel authorization and reimbursement
requests. The Tribes also adopted procurement procedures under which purchases
under $200.00 did not require a bidding process, purchases between $200.00 and
$500.00 required three quotes from vendors, purchases between $500.00 and
$5,000.00 required a more formal bidding process, and purchases over $5,000.00
required a sealed bidding process. Purchases in excess of $15,000.00 also
required approval of the Tribal Council, a group that consisted of all adult tribal
members.
In 2004, the FBI began investigating the use of gaming revenues by
Business Committee members. As a result of that investigation, Blind and
Sankey were indicted on conspiracy and embezzlement charges. Count One of
the indictment charged Blind and Sankey with conspiracy to embezzle tribal
monies. Counts Two through Six charged Blind with embezzling tribal funds by
engaging in the practice of negotiating cashier’s checks intended for his district
by depositing only a portion of each check in the district’s account and receiving
a portion back in cash. Counts Nineteen, Twenty-One, and Twenty-Two charged
Blind with purchasing automobiles with tribal funds and failing to return them to
the Tribes upon leaving office. Count Twenty-Four charged Blind and Sankey
with embezzling computer equipment.
At the close of evidence, Blind moved for a judgment of acquittal on all
counts, arguing there was insufficient evidence to sustain a guilty verdict. The
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district court denied the motion in its entirety, and the jury convicted Blind on all
counts in the indictment except the count concerning embezzlement of a
computer. A Presentence Report (“PSR”) was prepared and it calculated the
amount of loss at $216,538.14. Blind 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 Blind’s objections and sustained others, ultimately
reducing the loss amount for guidelines calculation purposes to $171,041.71.
Based on this amount, Blind’s base offense level of six was increased by ten
levels. See USSG § 2B1.1(b)(1)(F). His total offense level of sixteen and
criminal history Category I resulted in an advisory guidelines range of twenty-
seven to thirty-three months. The court sentenced him to thirty-three months’
imprisonment, the high end of the range. The court also ordered Blind to pay
$121,373.97 in restitution. On appeal, Blind challenges the sufficiency of the
evidence supporting his convictions for Counts Two through Six, Nineteen,
Twenty-One, and Twenty-Two, and corresponding denial of his motion for
acquittal; the district court’s calculation of the loss at sentencing which was used
to increase his base offense level; and the district court’s calculation of the
amount of restitution.
III. Discussion
A. Sufficiency of the Evidence
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This court reviews de novo whether the evidence was sufficient to allow a
rational jury to find a defendant guilty beyond a reasonable doubt. United States
v. Flanders, 491 F.3d 1197, 1207 (10th Cir. 2007). In so doing, however, all
evidence must be viewed in the light most favorable to the government and
reasonable inferences drawn in its favor. Id. An adverse ruling on a motion for a
judgment of acquittal is also reviewed de novo, using the standard that applies to
sufficiency challenges. United States v. Apperson, 441 F.3d 1162, 1209 (10th
Cir. 2006).
1. Cashier’s Checks
Blind first challenges his convictions on Counts Two through Six, which
charged him with embezzling money from the Tribes by retaining cash totaling
$14,468.87, representing portions of negotiated cashier’s checks intended for the
district. Blind admits the money was tribal money, but argues the government
failed to present any evidence the cash he 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 Two, the records showed
Blind cashed a cashier’s check payable to “Cheyenne & Arapaho - Arapaho Dist.
1 William Blind” in the amount of $16,373.87, in return receiving $4,995.00 in
cash and a new cashier’s check in the amount of $11,373.87 payable to the same
payee. As to Count Three, the records showed Blind cashed the new cashier’s
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check for $11,373.87, receiving $2,400.00 in cash and a new cashier’s check for
$8,973.87. As to Count Four, the records showed Blind cashed the $8,973.87
cashier’s check, depositing $5,000.00 into the A-1 District payroll account and
taking $3,973.87 in cash.
As to Count Five, the records showed Blind cashed a cashier’s check for
$6,383.88, made payable to “C & A Arapaho District 1 William Blind,” from
which $2,000.00 was deposited into the payroll account, $1,500.00 was taken in
cash, and the remaining $2,878.88 was used to purchase a new cashier’s check.
Finally, as to Count Six, the records showed Blind cashed the last cashier’s check
for $2,878.88, taking $1,600.00 in cash and purchasing a new cashier’s check
with the remaining $1,273.88. The government did not present any direct
evidence of how Blind spent the cash he retained from these transactions.
Blind contends there was insufficient evidence to convict him of converting
the cash for improper or personal use. Specifically, he argues the cashier’s check
transactions were not themselves secretive or illegal in nature. Additionally, he
argues the government’s case against him was undermined by witnesses who
testified cash was often used by Blind’s district for a variety of legitimate tribal
functions, including emergency assistance, office expenses, and advances for
trips. Witnesses also explained that cash transactions were necessary in light of
the Tribes’ troubled financial history because many local businesses would not
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take tribal checks. Finally, Blind argues there was no evidence he lived an
extravagant lifestyle or had an expensive vice.
Blind’s arguments ultimately fail because, although he presents one way
the jury could have viewed the evidence, it was not the only permissible view.
Although there was no direct evidence presented at trial concerning Blind’s use of
the cash retained from the cashier’s checks, there was sufficient circumstantial
evidence to allow a jury to find he embezzled the cash. See United States v.
Davila, 693 F.2d 1006, 1007 (10th Cir. 1982) (holding conviction can be founded
on circumstantial evidence and that as to embezzlement, often only circumstantial
evidence is available). The check-cashing scheme itself supports an inference of
conversion. One bank employee testified Blind’s actions were not “a normal way
of doing business.” In addition to being highly unusual, the transactions were
structured in such a way as to foreclose tracing subsequent use of the cash
obtained. The jury heard ample evidence of the Tribes’ procedures and
regulations designed to track tribal funds and ensure proper expenditures. In light
of those policies, Blind’s actions in structuring transactions in an inherently
untraceable way supports an inference Blind’s actions were designed to hide
conversion of tribal funds. See United States v. Baldridge, 559 F.3d 1126, 1141
(10th Cir. 2009) (explaining that unusual nature of transactions designed to avoid
detection can support a finding of an illegal intent). That Blind had access to and
actually used a legitimate district bank account for some purposes, rather than
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conducting all district business in this unusual fashion, further supports a
reasonable inference that the cashier’s check scheme was specifically structured
to embezzle tribal money.
The essence of Blind’s claim is that, since it is possible he used the cash
for legitimate tribal purposes, the government was required to demonstrate
specifically how he used the cash for his own private gain. This court has
considered and rejected an identical argument before. In Davila, evidence that
the defendant was reimbursed for travel vouchers that were implausible and
sometimes falsified was sufficient circumstantial evidence the money was
embezzled for defendant’s own use, even though some other evidence suggested a
plausible legitimate use. 693 F.2d at 1007. This court explained that “[f]or a
case to meet the standard for sufficiency of the evidence it is not required that an
appellate court exclude every reasonable hypothesis, but only that it find that a
jury might reasonably have done so.” Id.
Here, a jury might reasonably have excluded the possibility that Blind spent
the money legitimately. Blind contends uncontested evidence showed cash was
often used for legitimate district purposes such as the EA program. Although
there was such evidence, there was also ample competing evidence introduced at
trial. For instance, the Tribes’ resolution concerning the use of EA funds
specified “funds were to be used for limited purposes with proper
documentation,” and that “[a]ll checks will be made to the vendor only.”
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Witnesses testified that EA funds in Blind’s district, however, were routinely
distributed directly to tribal members and for purposes not enumerated in the EA
resolution. While failure to follow tribal procedures for administering the EA
program is not itself the conduct that forms the basis for the crime of
embezzlement, the failure to follow established procedures may permissibly
contribute to a finding that the cash was embezzled. Certainly, in light of
conflicting evidence, the jury was not required to conclude Blind used the cash
from the cashier’s checks solely for legitimate district expenditures.
Blind’s other arguments are likewise unpersuasive. Although Blind’s
lifestyle may not have been extravagant compared to some, there was evidence it
was well above the standard in his community as demonstrated by the multiple
buildings and vehicles on his property and his frequent travels. In short, the jury
was presented with competing circumstantial evidence concerning Blind’s use of
the cash retained from the cashier’s checks, and evidence supporting a finding of
embezzlement was sufficient for a jury to convict Blind.
2. Tribal Vehicles
Blind next challenges the sufficiency of the evidence to support his
convictions on Counts Nineteen, Twenty-One, and Twenty-Two, which involved
the embezzlement of vehicles purchased with tribal funds. Blind argues there was
insufficient evidence he converted the vehicles for his own personal use.
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Count Nineteen concerned a 2002 Lincoln Town Car, which Blind
purchased in the name of “Bill Blind & Cheyenne Arapaho Tribes of Oklahoma.”
Blind argues he legitimately purchased the Lincoln while a Business Committee
member and returned it to the Tribes when he left office. He points to testimony
that it was common practice for Business Committee members to purchase tribal
automobiles. He further explains that he registered the vehicle under “Cheyenne
and Arapaho Tribes, A-1,” indicating it was a tribal, not personal, vehicle and that
the vehicle was never registered or titled in his name alone. He also argues the
purchase was not kept secret; Blind’s successor on the Business Committee
testified he knew Blind had purchased the car and that “everybody” knew it.
Blind’s successor also testified that after he took over Blind’s position, he located
the Lincoln at the Enrollment Department of the Tribes and took possession of it,
using it until it was damaged in an accident. Blind also argues there was no
evidence he used the Lincoln for purposes other than tribal business.
Again, Blind’s argument rests on reading the evidence most favorably to
him rather than, as we must, in the light most favorable to the government. The
government presented sufficient evidence to support a jury finding that Blind
embezzled the Lincoln. The manner in which Blind purchased the vehicle
supports an inference that he purposefully acted in contravention of tribal policy.
Blind purchased the car with five cashier’s checks: two for $15,000.00, two for
$2,000.00, and one for $379.00. From this evidence, a jury could find Blind
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intended to circumvent the requirement that purchases over $15,000.00 be
submitted to a full Tribal Council vote. An FBI agent testified that Blind told
him the other Business Committee members agreed to his purchasing the Lincoln,
but three other Business Committee members told the agent they knew nothing
about the car. These facts support a jury finding that Blind intended to conceal
the purchase of the Lincoln so he could use it for his own purposes rather than
tribal business.
Evidence was also introduced that Blind’s use of the vehicle was out of the
ordinary. When Blind registered the Lincoln, Blind requested personal license
plates, rather than an official tribal tag as other Business Committee members did
for tribal vehicles. Evidence also indicated Blind had no legitimate tribal use for
the vehicle. Blind’s secretary testified he kept the purchase a secret from her and
she never saw him drive the Lincoln. Another tribal official who knew Blind also
testified she had never seen the Lincoln. That tribal employees who knew Blind
never saw him use the Lincoln supports a jury finding that the car was purchased
for personal, not tribal, use. Finally, the government presented evidence that
when Blind was voted out of office, he did not return the Lincoln until the Tribes
charged him in tribal court with embezzlement. Other Business Committee
members returned tribal vehicles when they left office. This evidence, viewed as
a whole, was sufficient to permit a jury to find Blind purchased the Lincoln with
tribal funds but then converted it for his own personal use.
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Count Twenty-One charged Blind and Sankey with embezzling a 2004
Chrysler 300M automobile. As to this vehicle, Blind titled and registered it in the
name of “William Blind or Cheyenne Arapaho Tribes,” which the dealer
employee testified would allow either Blind or the Tribes to resell the vehicle.
Like the Lincoln, the Chrysler was purchased with multiple cashier’s checks, each
under $15,000.00. In addition to the cashier’s checks, a 2002 Dodge Intrepid
belonging to the Tribes was traded in for a credit toward the purchase price. The
dealer employee testified that the dealer did not go through a bidding process with
the Tribes for the sale of the Chrysler. Again, like the Lincoln, Blind did not
obtain an official tag for the car, but rather obtained a personal tag; on the
Chrysler he even requested a personalized license plate reading “USNVET.” He
did not return the car when he left office. It was located at his residence by the
FBI nearly two years later. This evidence, like the evidence concerning the
purchase of the Lincoln, was sufficient for the jury to find the Chrysler,
purchased with tribal money, was embezzled.
Blind argues the Tribes’ name was always on the title of the Chrysler, and
use of a personalized tag would have no effect on the ownership. He further
argues there was nothing preventing the Tribes from coming to his residence and
reclaiming the vehicle, and that his failure to return it was a political statement
intended to protest his removal from office, which he viewed as illegitimate.
Ultimately, Blind’s position fails because, although he was certainly free to make
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these arguments to the jury, nothing compelled the jury to credit his account
instead of crediting the ample evidence indicating he embezzled the Chrysler.
Count Twenty-Two charged Blind and Sankey with embezzling a 2003
Dodge 1500 Quad Cab pickup truck. The Dodge was purchased and used in much
the same way as the Lincoln and the Chrysler. As to the Dodge, Sankey
purchased the truck with multiple cashier’s checks; each was less than $15,000
and two were drawn on Blind’s district account. No bidding process was used to
purchase the vehicle. The car was titled and registered as “Vinita Sankey or
Cheyenne Arapaho Tribe” and was tagged with a personal, rather than an official
tag. When Sankey renewed the registration in 2004, she registered the truck
solely in her name and obtained personalized license plates reading “T-WATER.”
Once Blind and Sankey left office, Sankey re-registered the pickup with the state
in her own name, rather than with the tribal registration office. The pickup was
not returned to the Tribes when Blind and Sankey left their positions with the
Business Committee.
Blind argues Sankey purchased the vehicle, not him, and that his name was
not on the title and there was no evidence he ever used it. He further contends the
evidence showed that the Tribes always knew where the truck was located and the
failure to return it was a political protest. Blind’s arguments fail. Evidence was
sufficient for a jury to find he was directly involved in the purchase of the Dodge:
half the funds for the purchase price came from Blind’s district account, Blind
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signed some of the paperwork associated with the vehicle, and the vehicle was
stored at Blind and Sankey’s joint residence. Even apart from his direct
involvement, the jury could have found him guilty based on his participation in a
conspiracy. Blind and Sankey were charged with conspiracy to embezzle tribal
funds, including by using tribal funds to purchase automobiles they did not return
when they left office. The jury convicted Blind and Sankey of the conspiracy and
specifically found them guilty of the act of embezzling vehicles. It is axiomatic
that a coconspirator is liable for the foreseeable acts of the other conspirators in
furtherance of the conspiracy. See United States v. Gillis, 942 F.2d 707, 711 &
n.1 (10th Cir. 1991). For all of these reasons, there was sufficient evidence to
sustain the jury’s verdict on this count.
B. Blind’s Sentence and Restitution Order
Blind challenges his sentence as procedurally unreasonable, arguing the
district court erred in calculating the total amount of loss used to set his offense
level under the sentencing guidelines. He further argues the district court erred in
calculating the amount of restitution he was ordered to pay, incorporating by
reference his arguments concerning the guidelines loss calculation. 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). When a
defendant challenges a loss amount in the PSR, the government bears the burden
of proving that amount by a preponderance of the evidence. United States v.
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Griffith, 584 F.3d 1004, 1011 (10th Cir. 2009). The district court’s loss
calculations are entitled to deference under the guidelines, because it is in the best
position to estimate the loss based on the evidence before it. See USSG § 2B1.1
cmt. n.3(C) (“The sentencing judge is in a unique position to assess the evidence
and estimate the loss based upon that evidence.”). Review of a restitution order
under the Mandatory Victims Restitution Act (“MVRA”) is for an abuse of
discretion, although application of the MVRA is reviewed de novo and factual
findings for clear error. United States v. James, 564 F.3d 1237, 1242 (10th Cir.
2009). If a defendant fails to object to a restitution award before the district
court, the award is reviewed for plain error. Id. at 1242-43.
1. Cashier’s Checks
First, Blind challenges the $31,351.55 amount of loss the district court
adopted from the PSR attributed to the cashier’s check scheme. He argues that
$16,882.68 of this amount was not supported by any evidence at trial or
sentencing. As to the remaining $14,468.87, he argues the inclusion of that
amount, evidence of which was introduced at trial, was erroneous because
evidence did not show that he kept the cash for personal use, essentially
advancing the same arguments as he did in his challenge to the sufficiency of the
evidence supporting the cashier’s check convictions.
Blind begins by arguing that, as a result of these alleged errors, the district
court used an incorrect loss amount to calculate his offense level. See USSG §
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2B1.1(b)(1)(F). The government argues at length that because Blind failed to
object to the amount of loss in the PSR attributable to the cashier’s checks, the
district court’s fact-finding obligation was not triggered. United States v.
Rodriguez-Delma, 456 F.3d 1246, 1253 (10th Cir. 2006) (explaining that a
defendant must object to the accuracy of specific facts in the PSR to invoke the
district court’s fact-finding obligation); see Fed. R. Crim. P. 32. There is no need
to decide whether Blind’s objection to the loss from the cashier’s check scheme
was adequate, however, because, as explained below, any error was harmless
because it did not affect his advisory guidelines range. See United States v.
Wilken, 498 F.3d 1160, 1169 (10th Cir. 2007) (“Even where we find an error in
calculating the Guidelines range, however, we need not vacate and remand the
sentence if the error was harmless.”).
The district court did not clearly err in including the $14,468.87 loss,
evidence of which was introduced at trial and described above. For the same
reasons Blind’s sufficiency challenge as to the cashier’s check convictions on
Counts Two through Six fails, there was sufficient evidence for the district court
to attribute that loss to Blind’s conduct. As to the remaining $16,882.68, the
government agrees on appeal there was no evidence to support that portion of the
total loss amount and concedes it was improperly included. The district court,
however, found Blind’s total loss amount to be $171,041.71 and, under the
guidelines, the same increase to a defendant’s offense level applies to loss
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amounts between $120,000.00 and $200,000.00. See USSG § 2B1.1(b)(1). Had
the district court not included the erroneous $16,882.58, it would not have
reduced Blind’s total loss amount below the $120,000.00 cutoff for calculating his
total offense level. Any error, even if Blind preserved his objection, was
therefore harmless as to Blind’s advisory guidelines range.
Based on the same factual allegations concerning the cashier’s checks in
the PSR, however, the district court also ordered Blind to pay $14,927.55 in
restitution. Again, of that, $14,468.87 was based on evidence introduced at trial
and Blind’s challenge to that amount is meritless for the reasons explained above.
The remaining $452.68, on the other hand, is a portion of the amount for which
the government concedes no evidence was presented. Under the MVRA, a
restitution order that the government concedes exceeds the loss caused by the
defendant is an illegal sentence that satisfies the plain error test. James, 564 F.3d
at 1243; United States v. Smith, 156 F.3d 1046, 1057 (10th Cir. 1998). Thus,
even if Blind did not preserve his objection to the restitution amount, as the
government argues, the inclusion of the $452.68 in the total amount is plain error
because the government concedes it was unsupported by 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). The restitution
order is therefore reversed as to the $452.68 amount attributed to a cashier’s
check transaction.
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2. Travel Reimbursements
Next, Blind challenges the inclusion of $11,635.46 in his total loss amount
attributed to improper travel reimbursements from four separate trips. 1 The
government agrees Blind preserved his objection as to three of the trip-related
losses but argues he failed to object to the amount related to the fourth trip. As to
the three reimbursement amounts to which Blind objected below, the government
admits those amounts were erroneously included as the government did not
present evidence to support them.
As to Blind’s challenge to the calculation of his advisory guidelines range,
even assuming he properly objected below, any error is harmless. If Blind’s loss
amount was reduced to $142,523.57 by deducting both the $11,635.46 from travel
reimbursements and the $16,882.68 of cashier’s check losses for which there was
no evidence, Blind’s total loss amount is still well above the $120,000.00 cutoff
used to calculate his offense level.
For the purposes of restitution, however, the government’s concession that
no evidence supported three of the four travel reimbursement amounts requires
reversing the restitution award as to those trips. Although the government did not
expressly concede a lack of evidence as to the fourth trip, instead arguing the
issue was not preserved for appellate review, it identified no record evidence
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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supporting the trip’s inclusion and none is apparent from the sentencing
transcript. Thus the district court plainly erred by ordering Blind to pay
$11,635.46 in restitution and the district court’s restitution order as to that
amount must be reversed. See id.
3. Wire Transfer
Blind challenges the district court’s inclusion of $8,339.00 in losses
attributed to a wire transfer of tribal funds to Las Vegas where he was attending a
training program. This loss amount was based on a manner and means allegation
in the conspiracy charge of the indictment, which alleged Blind “caused
$8,000.00 in tribal funds to be wire transferred from El Reno, Oklahoma, via
Western Union to Las Vegas, Nevada on January 28, 2003, for additional
expenses for [himself] and others.” 2 Blind argues the district court’s inclusion of
this loss amount was clearly erroneous because the jury did not specifically
identify which of the manner and means allegations substantiated the conspiracy
conviction and because evidence connected Sankey, but not him, to the fund
transfer.
Contrary to Blind’s assertion, however, the jury’s verdict form not only
convicted Blind of the conspiracy count generally, but also included a special
verdict in which the jury unanimously found Blind had committed the specific
2
Evidence at trial showed the additional $339.00 represented the transfer
fee for the funds.
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acts alleged in the indictment, including the wire transfer. Furthermore, evidence
presented at trial was sufficient to support a finding that Blind was responsible
for this loss, including evidence that Blind was present when Sankey suggested
the transfer and that he received a portion of the money. Accordingly, the district
court’s finding of loss as to the wire transfer based on the trial evidence and
jury’s verdict was not clearly erroneous and its inclusion of that amount for
guidelines and restitution purposes was not error.
4. Tribal Vehicles
Blind further challenges the loss amount with respect to the vehicles
purchased with tribal funds. The district court used the value of the Chrysler at
the time Blind left office as the loss amount attributed to that vehicle for
guidelines and restitution purposes. Blind first argues the district court erred in
using the full purchase prices of the Lincoln and the Dodge pickup to determine
those loss amounts, rather than their values at the time he left office as it did for
the Chrysler. 3 Blind further argues the Lincoln was used for tribal purposes
3
Blind makes an oblique reference in his brief to three vehicles whose full
value was counted toward his total loss amount, in addition to the Chrysler’s
partial value. Blind names the Lincoln and the Dodge pickup as two of the three,
but fails to identify the third vehicle in his opening brief. Although the
government assumes the third vehicle is a Dodge Intrepid, which was traded into
the dealership for a credit toward the purchase of the Chrysler, the Dodge Intrepid
was not in Blind’s possession at the time he left office and it is therefore unclear
how Blind believes its value should have been calculated. Given that Blind does
not even identify the vehicle whose value he challenges until his reply brief, and
never makes any argument as to how the district court erred specifically with
(continued...)
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during his time in office and that it was returned to the Tribes prior to the
indictment in this case. He therefore contends that no amount of loss should be
attributed to the Lincoln.
The district court, however, assessed the loss attributable to the two
vehicles as their initial purchase prices based on its finding that neither vehicle
was purchased for or used for tribal purposes, but rather was purchased with the
intent to deprive the Tribes of full use from the outset. This finding is not clearly
erroneous, as there was evidence the vehicles were purchased in a covert manner
and against tribal policy, they were titled and registered in a way designed to hide
their ownership by the Tribes, individuals who knew Blind never saw him or
Sankey use these vehicles, and the Lincoln was returned only after Blind was
charged with embezzlement in tribal court. Given this last uncontested fact, the
district court was certainly justified in not deducting any residual value under the
guidelines for the returned Lincoln, as such credit applies only if a defendant
returns property “before the offense was detected.” See USSG § 2B1.1 cmt.
n.3(E)(i).
3
(...continued)
respect to its valuation, Blind has presented inadequate appellate argument to
preserve review of the loss calculation as to the third vehicle. See United States
v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (“This Court will not consider
such ‘issues averted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation’”).
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Blind separately asserts the district court misapplied the MVRA in failing
to deduct from the restitution amount the value of any property returned or
returnable to the Tribes. Under the MVRA, a district court can either order a
defendant to return the property which caused the loss or, if return is “impossible,
impractical, or inadequate,” to pay the full value of the property “less the value
(as of the date the property is returned) of any part of the property that is
returned.” 18 U.S.C. § 3663A(b)(1). Blind argues that under this provision,
because the Lincoln was returned to the Tribes, either no restitution should have
been awarded as to it, or its value to the Tribes at the time of return should have
been deducted from the amount of restitution. He further asserts the district court
should have considered whether the Chrysler or Dodge pickup could be returned
and their present value deducted from the restitution amount.
Blind wholly failed to raise these objections and arguments before the
district court. Although he objected to the inclusion of the value of the cars for
purposes of the loss calculations, he raised only the argument that the relevant
value was the value of the automobiles on the date he left office, rather than their
purchase price, which was addressed above. He never argued that the district
court should have ordered the return of the vehicles or deducted their residual
value upon return from the calculations. Accordingly, this court reviews the
district court’s application of the MVRA for plain error. See James, 564 F.3d at
1242.
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As to the Chrysler and Dodge pickup, it is undisputed that neither was
returned. The MVRA instructs the district court either to order return of property
or, if return is impossible, impractical, or inadequate, to order payment of
restitution. 18 U.S.C. § 3663A(b)(1). By ordering a payment of restitution, the
district court implicitly determined that return of the Chrysler and Dodge pickup
was impossible, impractical, or inadequate. Although Blind points to evidence
suggesting return of the vehicles might have been possible some years prior to his
trial when a federal investigator located them on his property, Blind identifies no
evidence in the record that return of these vehicles was possible, practical, or
adequate at the time of sentencing. See 18 U.S.C. § 3663A(b)(1)(A)
(contemplating return of property as occurring after entry of a restitution order).
Accordingly, Blind cannot demonstrate the district court plainly erred in its
restitution order as to those two vehicles.
As to the Lincoln, it is undisputed that it was returned. The value of
property for which a defendant owes restitution is a factual issue. See United
States v. Overholt, 307 F.3d 1231, 1253 (10th Cir. 2002). The PSR set forth
value of the Lincoln used to calculate the restitution Blind owed the Tribes.
When a defendant fails to raise an objection at sentencing to a factual assertion in
the PSR, there is no factual dispute requiring further resolution by the district
court. Id.; see also United States v. Barton, 366 F.3d 1160, 1166 (10th Cir. 2004)
(“Where . . . the PSR recommends restitution under the MVRA for an actual
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recoverable loss incurred by a victim of the defendant’s crime, and the defendant
does not object to that request, there is no need under the MVRA for a district
court to engage in any additional fact finding with respect ‘to the proper amount
or type of restitution,’ 18 U.S.C. § 3664(e).”); United States v. Johnson, 183 F.3d
1175, 1179 (10th Cir. 1999) (explaining that by “failing to challenge the court’s
[restitution] order on the grounds he now raises, Defendant stripped the district
court of its ability to make findings”). In such circumstances, adopting the facts
in the PSR will not constitute plain error. Overholt, 307 F.3d at 1253; see
Rodriguez-Delma, 456 F.3d 1246, 1254 (holding when a defendant fails to allege
any factual inaccuracy in the PSR, “it [is] not error for the district court to adopt
the uncontested facts in the PSR”). Moreover, even if the failure to reduce the
restitution attributed to the Lincoln by its value at the time of return was
erroneous, Blind has pointed to no evidence, much less uncontested facts, in the
record establishing the value of the Lincoln at that time and therefore cannot
demonstrate he was prejudiced. See James, 564 F.3d at 1242 (under plain error
review, defendant must demonstrate “clear or obvious error that affected his
substantial rights, and that seriously affected the integrity of the judicial
proceedings”).
5. Computer Equipment
Finally, Blind argues the district court’s finding of a $2,986.86 loss
attributable to computer equipment is clearly erroneous because the jury acquitted
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him of that charge. The district court concluded the evidence presented at trial
was sufficient to find the computer equipment purchase attributable to Blind.
That finding is not clearly erroneous. There was testimony at trial that: Blind
instructed his secretary to purchase the computer equipment, he did not follow
established procurement procedure, the equipment was delivered to Blind, and it
was never seen at the district office thereafter. Even if the loss related to the
computer equipment was erroneously included in the total loss, however, that
error would be harmless as, even if combined with other errors described above, it
would not decrease the total loss sufficiently to change Blind’s offense level. See
USSG § 2B1.1(b)(1). This loss amount was, moreover, not included in Blind’s
order to pay restitution.
V. Conclusion
For the forgoing reasons, Blind’s convictions are AFFIRMED, his
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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