United States v. Aubrey, No. 13-10510 (9th Cir. 2015)
Annotate this CaseDefendant, a contractor, appealed his conviction of two counts of conversion and misapplication of funds from a tribal organization, in violation of 18 U.S.C. 1163. Defendant's conviction stemmed from his involvement in projects he performed for the Navajo Nation. The court held that, for purposes of 18 U.S.C. 1163, funds paid from an Indian tribal organization to a contractor continue to be “property belonging to any Indian tribal organization,” as long as the tribal organization maintains sufficient supervision and control of disbursed funds and their ultimate use. In this case, the court concluded that a reasonable jury could find (a) that the funds misappropriated or converted by defendant belonged to a tribal organization, even if the funds were considered reimbursement for work already completed; and (b) that NHA had sufficient supervision and control of the Native American Housing Assistance and Self-Determination Act (NAHASDA), 25 U.S.C. 4101-4212, funds. The court found that there was sufficient evidence to convict defendant of misappropriating tribal funds. The court further concluded that the district court did not err by requiring a forensic auditor to be certified as an expert witness and compelling expert disclosures, and the district court did not err by allowing the auditor's summary charts to be admitted into evidence. Finally, the district court did not commit error in instructing the jury and the district court did not err in applying two sentencing enhancements. Accordingly, the court affirmed the judgment.
Court Description: Criminal Law. The panel affirmed a conviction and sentence for two counts of conversion and misapplication of funds from a tribal organization, in violation of 18 U.S.C. § 1163. The defendant is a contractor who owned a controlling interest in, and managed and controlled, two construction companies. His conviction resulted from his involvement in projects he performed for the Navajo Nation. The panel held that for purposes of § 1163, funds paid from an Indian tribal organization to a contractor continue to be “property belonging to any Indian tribal organization,” as long as the tribal organization maintains sufficient supervision and control of disbursed funds and their ultimate use. The panel held that a reasonable jury could find (a) that the funds misappropriated or converted by the defendant belonged to a tribal organization, even if the funds were considered reimbursement for work already completed; and (b) that the Navajo Housing Authority had sufficient supervision and control of the funds allocated to it by the U.S. Department of Housing and Urban Development pursuant to the Native American Housing Assistance and Self- Determination Act. The panel concluded that there was sufficient evidence for a rational jury to conclude beyond a reasonable doubt that the defendant was misappropriating the tribal funds. UNITED STATES V. AUBREY 3 The panel held that the district court did not err by not requiring a prosecution witness, a forensic auditor with HUD’s Office of Inspector General, to be certified as an expert; and that the district court did not abuse its discretion by allowing the witness’s summary charts to be admitted into evidence. The panel held that the district court did not err in instructing the jury. The panel held that the district court did not err in applying sentence enhancements for loss more than $1,000,000 but not more than $2,500,000 and abuse of trust.
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