Unpublished Disposition, 875 F.2d 319 (9th Cir. 1985)

Nos. 88-3071, 88-3088.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and ALARCON, Circuit Judges, and WILLIAM H. ORRICK,^*  Senior District Judge.

MEMORANDUM^** 

Appellants Gary Eagleman and Raymond Parker, Sr., members of the Chippewa-Cree Tribe of the Rocky Boy's Indian Reservation, and members of the Welfare Committee of the Tribal Council, appeal jury verdicts against them for violations of 18 U.S.C. § 641, which prohibits the misappropriation of federal funds.¹ 

Parker was found guilty of violating 18 U.S.C. § 641 in two counts of the indictment. In Count Six,²  he was charged with voting in favor of granting Daniel Denny, a member of the Tribe, an advance of $1,200 on his general assistance benefits even though Parker knew granting the advances was improper. In Count Eight of the indictment, both Eagleman and Parker were charged with approving general assistance benefits to Milton Clark, a member of the Tribe, whom they knew to be ineligible.

On appeal, Parker and Eagleman argue first that there was insufficient evidence to justify the jury's guilty verdicts against Parker on Count Six and both Parker and Eagleman on Count Eight. Appellants moved the district court for a judgment of acquittal and a dismissal of the indictment on this basis and the district court denied the motion. Second, appellants argue that the trial court erred by not giving a requested jury instruction on good faith. We affirm Parker's conviction under Count Six and both appellants' convictions under Count Eight.

The Chippewa-Cree Tribe resides on the Rocky Boy's Indian Reservation in Montana. The Tribe entered into an agreement with the Bureau of Indian Affairs to operate its own Social Service Programs within Bureau regulations. To administer the programs the Tribe established a Social Services Program Director and a Welfare Committee to hear appeals from denial of the Social Services Program Director. The programs included the granting of general assistance benefits, funded by the federal government, to members of the Tribe who qualify under Bureau of Indian Affairs' guidelines.

Finally, the trial court denied appellants' request to give a jury instruction on good faith.

In reviewing verdicts for the sufficiency of the evidence to support them, the standard of review is whether there was substantial evidence of proof beyond a reasonable doubt of each essential element to support the conviction. United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir. 1986). The court must view the evidence in the light most favorable to the government and the reviewing court must respect the province of the jury to ascertain the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts, assuming the jury resolved these matters in a manner that supports the verdict. United States v. Goode, 814 F.2d 1353, 1355 (9th Cir. 1987).

To obtain a conviction under 18 U.S.C. § 641, the United States must prove the following three elements: (1) that the defendant embezzled, stole, purloined, or knowingly converted to his use or the use of another, money or things of value; (2) that the money or property was federal money or property of a value in excess of $100; and (3) that the defendant did such acts willfully and with the intent to appropriate money to a use inconsistent with the owner's rights and benefits. 18 U.S.C. § 641.

Of these elements, Parker claims the government failed to prove that he acted willfully and that the government did not prove the amount of money misappropriated exceeded $100.

Many of the facts regarding the Denny incident are undisputed. Denny was a resident of Rocky Boy's Reservation. He had been determined eligible for general assistance and was on the general assistance rolls. On January 17, 1985, he went to the Program Director for Social Services, Donald Good Voice, seeking a two month advance payment of his benefits. Good Voice denied the request and told him the next step was to go to the Welfare Committee for an appeal. The Tribal Council was meeting at the time, and Good Voice accompanied Denny to the meeting. Parker was present as a member of the Tribal Council. Denny presented his request for an advance, and Good Voice told the Council that his office had previously granted advances to Denny.

Good Voice testified at trial that he told the Tribal Council that advances were, however, not permitted by Bureau of Indian Affairs' regulations. Denny, on the other hand, testified that Good Voice told the Council that it was proper to grant an advance. A vote was taken and Parker voted in favor of it. The request was granted and Denny received an advance of approximately $1,200.

The only evidence that the government presents on appeal is that Parker was present and voted on the request for assistance. On the other hand, Parker himself points out in his brief that Good Voice testified that he told the Tribal Council that such advances were not permitted by the regulations. This fact is disputed by Denny's testimony, but it must be resolved in favor of the government. Thus, taking Good Voice's testimony as true, Parker was informed that he did not have the authority to grant the advance. This is enough evidence to satisfy the element that Parker's act be willful.

The second issue Parker raises is whether the government proved the jurisdictional amount of $100. The advance to Denny was for approximately $1,200. There is some dispute as to whether all of that amount was an advance or whether some of it constituted a current payment of benefits. Resolving that dispute in favor of the government, the $100 jurisdictional amount is clearly satisfied.

There was sufficient evidence to support the jury verdict against Parker for Count Six.

The same standard of review outlined above applies to whether the evidence was sufficient to convict Parker and Eagleman of Count Eight. In addition, the same statute, 18 U.S.C. § 641, is at issue.

Parker and Eagleman argue that the government failed to prove that the monies misappropriated were in excess of $100 and that they willfully misappropriated the money.

Addressing the first issue of whether or not the amount of money in the incident involving Clark was in excess of $100, there is sufficient evidence that the amount involved exceeded $100. Appellants' argument is based on their admission to only approving general assistance to Clark for $38.

The government, however, points out circumstantial evidence that proves beyond a reasonable doubt that the appellants had engaged in a course of conduct over the term of the indictment relating to Clark in which the amount of money misappropriated clearly exceeded $100. First, the investigating agent testified that in excess of $2,000 had been paid to Clark during the period of the indictment. Second, one of the Social Services coordinators testified that Clark had been on general assistance during his term of employment. Finally, Clark himself testified that he had been on general assistance for a substantial period of time. All the payments had been made while Clark was ineligible. These facts could easily lead a reasonable jury to infer that more than the one admitted $38 payment was made. Thus, the government proved the jurisdictional amount.

The next issue is whether the government proved that appellants acted willfully when they approved money for Clark. The government must prove that appellants approved the funds for Clark knowing that they did not have the authority to do so because Clark was ineligible for assistance. Clark's ineligibility is not in question. His common law wife is a member of a Canadian Indian Tribe and receives support from that tribe. The amount of the Canadian support is counted as income for Clark and this support puts him beyond the cut-off level for general assistance. Thus, we must examine the government's evidence that proved Parker and Eagleman knew Clark was ineligible and still approved assistance for him.

The government introduced memoranda from the Clark file. The notes were written by the Social Services Resources Coordinator, Harriet Standing Rock, and read as follows:

10/14/85 Milton Clark--GA

I denied applicant from receiving ga. Spouse receives monthly income from Babbema, [sic] Alberta. Unit is 500.00 for spouse alone. Their income varies, based on royalties received. At times it is at 1000.00 for a mo for adults. See ltr of denial addressed to him. HSR

10/15/85 Gary Eagleman, Welfare Comm. Chairman called to see why I denied Milton. Explained to him regarding the income received. After his call Mr. Rocky Stump called & asked same question, I told him same story. If they approve this client I don't want to be involved. HSR

Reply Brief of Appellants filed 12/15/88, at 3. These notes clearly draw the inference that Eagleman knew Clark was ineligible. Furthermore, the government points out that both Parker and Eagleman admitted that they knew Clark was not eligible for general assistance funds.

Appellants argue that the Welfare Committee initially rejected Clark's appeal. The following day, however, Clark's mother called Parker and said: "You guys should try to help this guy, his kids ain't got nothin to eat." The inference is that Parker and Eagleman discussed the phone call because afterward Eagleman wrote a referral and authorized a $38 payment.

There was sufficient evidence to support the jury verdict against both appellants for Count Eight.

Failure to give jury instructions on defendant's theory of the case is reversible error if the theory is legally sound and evidence in the case makes it applicable. United States v. Scott, 789 F.2d 795, 797 (9th Cir. 1986); United States v. Escobar de Bright, 742 F.2d 1196, 1201 (9th Cir. 1984). A trial court's refusal to give an instruction is tested for abuse of discretion. United States v. Makhlouta, 790 F.2d 1400, 1405 (9th Cir. 1986).

Appellants requested the following jury instruction on good faith:

If you find, after all the evidence is presented to you, that the defendants, and each of them in his capacity as an elected member of the Chippewa Cree Tribal Council of the Rocky Boy's Indian Reservation, acted in good faith and without regard for personal gain as to the Tribal Social Services Program, then you must acquit the defendants.

Appellants argue that this instruction on good faith constituted their theory of the case and should have been given by the court.

In this case, defendants' theory was not legally sound and no instruction was required. In Scott, the Court held that the element of intent in 18 U.S.C. § 641 required proof of intent to sell, or in this case misappropriate funds without authorization. 789 F.2d at 798. The Court specifically held that the statute does not allow unauthorized use of funds if a good purpose is involved. Id. Thus, a theory that revolves around the unauthorized use of funds for a good purpose is not legally sound and an instruction based on such a theory was properly denied.

The convictions of appellants are AFFIRMED.