United States v. Thunder, 05-3446.

• Decision Date: 24 April 2006
• Docket Number: No. 05-3447.,No. 05-3446.,05-3446.,05-3447.
• Citation: 445 F.3d 1062
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marcia BRAVE THUNDER, also known as Marcia Bailey, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Rinissa Fitzpatrick, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1062

445 F.3d 1062

UNITED STATES of America, Plaintiff-Appellee, v. Marcia BRAVE THUNDER, also known as Marcia Bailey, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Rinissa Fitzpatrick, Defendant-Appellant.

No. 05-3446.

No. 05-3447.

United States Court of Appeals, Eighth Circuit.

Submitted: April 19, 2006.

Filed: April 24, 2006.

Kent M. Morrow, Bismarck, ND, for appellant.

Steven Balaban, Bismarck, ND, for Fitzpatrick.

Rick L. Volk, Asst. U.S. Attorney, Bismarck, ND, for appellee

Before MURPHY, MELLOY, and GRUENDER, Circuit Judges.

MURPHY, Circuit Judge.

A jury convicted Marcia Brave Thunder, a/k/a Marcia Bailey, and Rinissa Fitzpatrick of theft from an Indian tribal organization, conspiracy to commit an offense against the United States, and making false statements to the Federal Bureau of Investigation (FBI). The district court¹ sentenced Brave Thunder to 15 months and Fitzpatrick to 21 months and ordered restitution from both. Brave Thunder and Fitzpatrick appeal, challenging the sufficiency of the evidence and their sentences. We affirm.

A federal grand jury indicted Brave Thunder and Fitzpatrick on one count of theft from the Long Soldier District of the Standing Rock Sioux Tribe, in violation of 18 U.S.C. §§ 1163 and 2, conspiracy to commit offenses against the United States by stealing and misapplying funds belonging to the Tribe, in violation of 18 U.S.C. § 371, and making false statements to the FBI about tribal consultant agreements and their own consultant status, in violation of 18 U.S.C. § 1001.

At trial the government introduced evidence that Brave Thunder and Fitzpatrick held several elected positions in the Long Soldier District of the Standing Rock Sioux Tribe. During the time period relevant to these appeals, Fitzpatrick, who had been elected secretary for the District, served as interim treasurer because the elected treasurer had resigned. Brave Thunder served as a member of the Business Committee, a subcommittee of the Planning Commission.

When Cheryl Penny was appointed treasurer in May 2003, she sought to obtain the District's financial records from Fitzpatrick but learned that the records had been delivered by Fitzpatrick and Brave Thunder's mother to a certified public accountant, Paul East, for a review ordered by the District. After an investigation was initiated against District officers, the records were turned over to FBI Special Agent Hal Stutsman who reviewed them with Penny. Stutsman and Penny discovered a number of consultant agreements which had been executed in 2002 authorizing payment by the District of thousands of dollars to Brave Thunder and Fitzpatrick. They also found files containing consultant offer letters for Brave Thunder and Fitzpatrick, consultant agreements, returned checks, and worksheets tracking the consultant payments. Tribal law prohibited elected officials from entering into contracts with the District, and consulting agreements needed approval from the District Council and the Tribal Council. None of the consulting agreements had gotten such approval.

Stutsman created a summary of the checks issued pursuant to the consulting agreements to Fitzpatrick and Brave Thunder between September 1, 2002 and March 31, 2003, showing payments of $71,000 to Fitzpatrick and $40,100 to Brave Thunder. Stutsman tracked $32,100 of the consulting money paid to Fitzpatrick and $23,900 of that paid to Brave Thunder to their respective bank accounts. Stutsman noted discrepancies between the District Planning Commission minutes which had been delivered to Paul East and the official versions filed with the Tribal Council. Only the unofficial minutes contained motions for the approval of consultant agreements for Brave Thunder and Fitzpatrick; the Planning Commission members shown as having made the motions denied it.

When Stutsman confronted Brave Thunder and Fitzpatrick, Brave Thunder said she had not signed a consultant agreement and did not recall being paid pursuant to one. Fitzpatrick said she had not been hired as a consultant and claimed not to have seen any consultant agreements. Stutsman had exemplars of the handwriting of Brave Thunder and Fitzpatrick reviewed by a trained handwriting examiner. The examiner opined that it was "highly probable" that Brave Thunder's signatures on the consultant agreement and the exemplars were authored by the same person and stated without reservation that the Fitzpatrick signatures on the agreement and the exemplars had been written by the same individual.

The jury convicted Brave Thunder and Fitzpatrick on all three counts. At sentencing the district court imposed two level enhancements under U.S.S.G. § 3B1.3 for both defendants based on their abuse of positions of trust. The court noted that Fitzpatrick was an elected official who had served as a member of the Board and Planning Commission, had authority to sign checks, and had signed both the checks and consulting agreements at issue. It also observed that Brave Thunder was a member of the Business Committee, bore responsibility for planning and recommending approval of expenditure of funds, and executed the false consulting agreements. The court also found that an 8 level increase to Fitzpatrick's...