Unpublished Disposition, 875 F.2d 319 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 319 (9th Cir. 1988)

No. 88-3120.

United States Court of Appeals, Ninth Circuit.

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

MEMORANDUM** 

Appellant, United States of America, appeals the trial court's order granting a judgment of acquittal and dismissal of the indictment in favor of appellee, Rocky Mountain Stump, after a jury returned a guilty verdict for a violation of 18 U.S.C. § 641, which prohibits the misappropriation of federal funds.1  The basis for the United States' appeal is that there was sufficient evidence to support the jury verdict. We affirm the trial court's decision granting a judgment of acquittal and dismissal of the indictment.

Rocky Mountain Stump is the Chairman of the Tribal Council of the Chippewa-Cree Tribe of 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. These 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. The Tribal Council's Welfare Committee hears appeals of decisions made by the Tribe's Social Services Program Director regarding benefits. Rocky Mountain Stump was charged with misappropriation of federal funds used for this general assistance program by granting benefits to individuals he knew to be ineligible.

Rocky Mountain Stump was found guilty by a jury on Count Four2  of misappropriating federal funds in an instance involving Milton Clark. Clark came to the Welfare Committee after being turned down by the Social Services Program Director and the Committee denied his appeal for general assistance. On the following day, after Clark's mother phoned a member of the Welfare Committee, an award of $38 was approved for Clark.

The standard of review for a judgment of acquittal and dismissal of the indictment, entered after a verdict of guilty, is the same as the standard of review for the trial court following conviction. United States v. Sharif, 817 F.2d 1375, 1377 (9th Cir. 1987); United States v. Brandon, 633 F.2d 773, 780 (9th Cir. 1980). The evidence must be considered in the light most favorable to support the verdict and must be such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.

To obtain a conviction under 18 U.S.C. § 641, misappropriation of federal funds, 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.

The trial court in its Memorandum and Order filed May 5, 1988, based its decision on what it believed to be an insufficiency of the evidence with regard to whether Rocky Mountain Stump actually authorized the illegal payment of general assistance funds to Clark.

The trial court found that there was no evidence establishing that Rocky Mountain Stump authorized the payments to Clark. The government in its brief could not point to any evidence introduced at trial that Rocky Mountain Stump authorized the payments to Clark. Instead, the government points to circumstantial evidence that shows Rocky Mountain Stump knew Clark was ineligible for payments and evidence showing that in the past Rocky Mountain Stump might have approved payments to other ineligible individuals. Such evidence might satisfy the intent element, but it does not prove that Rocky Mountain Stump actually authorized Clark's payment in this instance. Proof of actual authorization is an essential element and is required to uphold a conviction under Sec. 641. The government has failed in its burden to prove that Rocky Mountain Stump authorized the payment of benefits to Clark.

The trial court's order granting the motion for judgment of acquittal and dismissal of the indictment in favor of Rocky Mountain Stump is AFFIRMED.

 *

Honorable William H. Orrick, Senior United States District Judge for the Northern District of California, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

18 U.S.C. § 641 provides in pertinent part:

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof ...

* * *

Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.

 2

Certain counts of the original indictment were dismissed prior to trial. Therefore, the numbering of the counts used in trial was different from the numbering in the original indictment. Reference herein is to the count as numbered in the original indictment

In addition, it appears that an error was made in the judgment. Apparently the judgment did not take into account the number changes in the indictment and, therefore, cite incorrectly the count for which the defendant was found guilty. All parties agree on what count the defendant was actually found guilty and it is likely the judgment simply contains a typographical error.