US Answer Brief - Turtle Talk

Case: 11-30352 06/07/2012 ID: 8206494 DktEntry: 13 Page: 1 of 57 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

vs. 

FLORENCE A. WHITE EAGLE, 

Defendant-Appellant. 

C.A. 11-30352 

D.C. No.: CR 11-32-GF-SEH 

BRIEF OF APPELLEE UNITED STATES 

________________________________________ 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MONTANA 

GREAT FALLS DIVISION 

_________________________________________ 

MICHAEL W. COTTER 

United States Attorney 

CARL E. ROSTAD 

J. BISHOP GREWELL 

Assistant U.S. Attorneys 

U.S. Attorney’s Office 

P.O. Box 3447 

Great Falls, MT 59403 

119 1st Ave. North, Suite 300 

Great Falls, MT 59401 

Phone: (406) 761-7715 

ATTORNEYS FOR APPELLEE 

United States of America


TABLE OF CONTENTS 

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

iv 

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 

STATEMENT OF THE ISSUES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 

Did sufficient evidence exist to convict White Eagle for her 

involvement with Greybull’s fraudulent loan scheme and 

efforts to cover up the loan scheme?.. . . . . . . . . . . . . . . . . . . 2 

Did the district court clearly err in finding that the loss 

attributable to White Eagle exceeded $10,000?. . . . . . . . . . . 3 

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . 3 

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 

The Bureau of Indian Affairs attempts to end its oversight of the 

Fort Peck Credit Program.. . . . . . . . . . . . . . . . . . . . . . . . . . . 4 

The Fort Peck Credit Program has a history of corruption under 

Toni Greybull.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 

White Eagle is directed not to use the Fort Peck Credit Program 

since it involves a conflict of interest for her. . . . . . . . . . . . . 8 

White Eagle writes a false letter to Greybull’s mother to conceal 

a fraudulent loan that Greybull had taken from the Credit 

Program in her mother’s name. . . . . . . . . . . . . . . . . . . . . . . 12 

Despite a prohibition on taking further loans from the Credit 

Program, White Eagle has Greybull approve her for a loan 

from the Credit Program the day before writing the false 

letter to Greybull’s mother. . . . . . . . . . . . . . . . . . . . . . . . . . 15 

After Greybull’s death, White Eagle covers up a loan that 

Greybull had taken out in her sister’s name. . . . . . . . . . . . 17 

White Eagle is sentenced to 51 months for her role in the Credit 

Program fraud and cover up. . . . . . . . . . . . . . . . . . . . . . . . . 19 

ii


SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 

The evidence of White Eagle’s guilt is sufficient to support her 

conviction on all six counts. . . . . . . . . . . . . . . . . . . . . . . . . . 21 

Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 

There was sufficient evidence to prove White Eagle 

guilty of conspiracy as well as theft and 

conversion from an Indian tribal organization 

(Counts I, II). . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 

There was sufficient evidence that White Eagle 

accepted a bribe from Greybull (Count III). . . . 29 


concealed material facts from the Bureau of 

Indian Affairs (Count IV). . . . . . . . . . . . . . . . . . 33 


engaged in official acts affecting her own 

personal financial interests (Count V). . . . . . . . 35 

There was sufficient evidence to prove White Eagle 

guilty of misprision of a felony (Count VI). . . . . 39 

The sentence imposed was reasonable. . . . . . . . . . . . . . . . . . . . . 43 

Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 

STATEMENT OF RELATED CASES. . . . . . . . . . . . . . . . . . . . . . . . . . 49 

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 

iii


TABLE OF AUTHORITIES 

Cases 

Page 

Jackson v. Virginia, 

443 U.S. 307, 319 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23 

United States v. Daddano, 

432 F.2d 1119 (7th Cir. 1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 

United States v. Dreitzler, 

577 F.2d 539, 546 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . 29 

United States v. Goodbear, 

676 F.3d 904, 909 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . 43 

United States v. Green, 

592 F.3d 1057, 1065 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . 21 

United States v. Irons, 

640 F.2d 872, 878 (7th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . 38 

United States v. King, 

402 F.2d 694, 697 (9th Cir. 1968). . . . . . . . . . . . . . . . . . . . . . 40-42 

United States v. Kuh, 

541 F.2d 672 (7th Cir. 1976). . . . . . . . . . . . . . . . . . . . . . . . . . 40-42 

United States v. Schaffer, 

183 F.3d 833, 841 (D.C. Cir. 1999), 

vacated 240 F.3d 833 (D.C. Cir. 2001).. . . . . . . . . . . . . . . . . . . . . 33 

United States v. Wilson, 

980 F.2d 259, 262 (4th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . 47 

iv


Statutes 

Page 

18 U.S.C. § 1001(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 

18 U.S.C. § 1163. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 

18 U.S.C. § 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 

18 U.S.C. § 201(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 

18 U.S.C. § 208(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 38-40 

18 U.S.C. § 216. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 

18 U.S.C. § 3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 

18 U.S.C. § 371. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 

18 U.S.C. § 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 

25 CFR § 101.6(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 

25 CFR § 140.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 

25 CFR § 140.5(f).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 

5 CFR § 2635.702(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27 

v


Other Authorities 

Page 

H.R. Rep. No. 748, 87th Cong., 1st Sess. 24 (1961). . . . . . . . . . . . . . . . 38 

USSG § 2B1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 43-46 

USSG § 2C1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 

vi


INTRODUCTION 

Florence White Eagle was the highest-ranking Bureau of Indian 

Affairs official at the Fort Peck Indian Reservation. She was required 

to sign off on any loan taken from the Fort Peck Credit Program that 

pledged Indian trust assets. Her friend and subordinate Toni Greybull 

oversaw that program. For years, Greybull ran a scheme where she 

and other Credit Program employees took out fraudulent loans in their 

own names and in the names of family members. Greybull was 

prohibited from taking loans from this program because of conflict of 

interest concerns. 

When Greybull’s mother discovered loans that her daughter had 

taken out in her name, without her knowledge or approval, she 

reported it to the Office of the Inspector General. Unaware of this 

complaint, but knowing that her mother had discovered the fraud, 

Greybull tried to conceal her fraud by having White Eagle write a letter 

to her mother falsely claiming the loans had been paid off. In return, 

Greybull approved a $15,000 loan for White Eagle who, like Greybull, 

was prohibited from taking money from the Credit Program. White 

1


Eagle later took other official actions that served to keep Greybull’s 

various frauds concealed. 

White Eagle challenges the sufficiency of the evidence to support 

her convictions. Viewing all of the evidence and resolving conflicting 

inferences in favor of the prosecution, the jury had plenty of evidence to 

convict. White Eagle also challenges the loss attributed for sentencing 

purposes. The district court did not clearly err in calculating the loss 

amounts, nor did it abuse its discretion in applying a four-level 

enhancement based on those amounts. 

STATEMENT OF JURISDICTION 

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. 

This Court has jurisdiction pursuant to 28 U.S.C. § 1291. Final 

judgment was entered on November 7, 2011. ER 200-06; CR 84. White 

Eagle timely appealed on November 21, 2011. ER 178-79; CR 87. 

STATEMENT OF THE ISSUES 

1. Did sufficient evidence exist to convict White Eagle for her 

involvement with Greybull’s fraudulent loan scheme and efforts to 

cover up the loan scheme? 

2


2. Did the district court clearly err in finding that the loss 

attributable to White Eagle exceeded $10,000? 

STATEMENT OF THE CASE 

White Eagle was indicted for a conspiracy to convert tribal credit 

program proceeds in violation of 18 U.S.C. § 371 (Count I), theft and 

conversion from an Indian Tribal organization in violation of 18 U.S.C. 

§§ 1163, 2 (Count II), bribery in violation of 18 U.S.C. § 201(b)(2) 

(Count III), concealment of public corruption in violation of 18 U.S.C. 

§ 1001(a)(1) (Count IV), public acts affecting a personal financial 

interest in violation of 18 U.S.C. §§ 208(a), 216 (Count V), and 

misprision of a felony in violation of 18 U.S.C. § 4 (Count VI). ER 1-12. 

White Eagle was convicted on all six counts. ER 162 (510-11). She was 

sentenced to 51 months in prison and three years of supervised release. 

ER 172 (36). 

STATEMENT REGARDING ORAL ARGUMENT 

Under Federal Rule of Appellate Procedure 34(a), the United 

States advises the Court of its view that oral argument is unnecessary 

because the facts and legal arguments are adequately presented in the 

briefs and record. 

3


STATEMENT OF FACTS 

I. The Bureau of Indian Affairs attempts to end its oversight 

of the Fort Peck Credit Program. 

The Fort Peck Indian Reservation in north-eastern Montana is 

home to the Assiniboine and Sioux Tribes. The Bureau of Indian 

Affairs (BIA) is the federal government’s trustee for trust lands on the 

Fort Peck Indian Reservation. ER 63 (119). It ensures that tribal 

members obtain the benefits from development of those trust lands. 

ER 63 (120). The returns from development of trust lands accrue to 

tribal members’ individual trust accounts. ER 52-53 (76-77). 

For many years, the BIA also oversaw a credit program on the 

Reservation: the Fort Peck Credit Program. ER 64 (122-23), 366. The 

program was initially funded from a loan by the United States 

government. ER 366. The Credit Program provides a supplemental 

source of credit to tribal members so as to “rais[e] the economic status 

of members of the Tribes to a point where they can look to the same 

sources of financing as are looked to by other citizens.” ER 210-11, 220. 

The program offers both short-term and long-term loans. ER 52 (74- 

75). Short-term loans are capped at $2,000 per tribal member and are 

4


often secured by a payroll deduction. ER 52-53 (75-76, 79); ER 94 (243); 

ER 230. They have to be repaid within a year. ER 94 (243). Long-term 

loans can be in excess of $2000 and are typically used to purchase land, 

pay for education, or run a business. Id. These loans are often secured 

by a tribal members’ individual trust account. ER 52-53 (76-77). 

The Fort Peck tribes eventually repaid the United States for the 

loan that funded the Credit Program. ER 366. And so, in September 

2007, the Regional Director for the BIA instructed Fort Peck’s BIA 

Superintendent —Florence White Eagle— to transition oversight of 

the Credit Program to the tribe. ER 66 (130-32); ER 366. 

The BIA finally ended its oversight of the Credit Program around 

December of 2008. ER 122 (352-53). The transition was delayed 

because the tribe and White Eagle thought that the federal government 

should remain involved. ER 67 (133-34). White Eagle had an interest 

in the BIA retaining oversight. As Superintendent, she was the BIA’s 

highest ranking official at Fort Peck. ER 64 (124-25). And she had 

been taking loans from the Credit Program despite being prohibited 

from doing so. ER 54 (81); ER 64-65 (124-26). 

5


II. 

The Fort Peck Credit Program has a history of corruption 

under Toni Greybull. 

While the Fort Peck Credit Program was under BIA oversight, it 

was staffed with six employees — four tribal and two BIA employees. 

ER 55 (85); ER 87 (215). The two federal employees were in charge. 

ER 55 (86); ER 87 (215). All of those employees used the Credit 

Program as their own personal piggy bank. One snapshot audit found 

that $850,000 of the funds outstanding from the Credit Program had 

gone to the six employees or their family members — nearly 45-percent 

of the total money leant out. ER 52-53 (73-74, 77-78); ER 58 (97). That 

number was later raised to $1.2 million when an audit was conducted 

by the Office of Inspector General. ER 54 (81-82). 

Toni Greybull served as the loan specialist —the top operational 

position in the Credit Program office— before being promoted to BIA 

Administrative Officer at Fort Peck at which time she continued to 

control the affairs of the program as the supervisor of her replacement, 

Shelley Pipe. ER 55-57 (85-86, 92-93); 67 (135); ER 95 (244); see also 

ER 87-88 (215-17). She ran a scheme where Credit Program employees 

took fraudulent loans in their names or the names of their family 

6


members in excess of the $2,000 limit to each tribal member. ER 55-56 

(88-92); ER 88 (217). They split the cash and concealed the fraud by 

doctoring loan files. ER 55-56 (88-92). The entire office was involved. 

ER 58 (97). While loans were supposed to be approved by a threeperson 

credit committee, the fraudulent loans were usually not sent to 

the committee but approved by Greybull instead. ER 91 (230); ER 95 

(244); ER 119 (339). When the BIA sent in outside auditors, the Credit 

Program employees tried to cover up their fraud by changing the 

electronic files to put the loans into the names of deceased tribal 

members. ER 56 (91). 

The scheme, and Greybull’s involvement in it, continued even 

after she left the office and was promoted to BIA Administrative 

Officer. ER 57 (93); ER 67 (135); ER 88 (217); ER 95 (244). As BIA 

Administrative Officer, Greybull was in a good position to continue to 

supervise the scheme. She supervised the loan specialist who took over 

as head of the Credit Program. ER 87-88 (215-16). Greybull died in 

March of 2008. ER 57 (95); ER 131 (386). But her scheme began to 

unravel in the summer of 2007. 

7


III. 

White Eagle is directed not to use the Fort Peck Credit 

Program since it involves a conflict of interest for her. 

In the late summer of 2007, the Regional Director for the BIA 

—who was Superintendent White Eagle’s immediate supervisor— 

received a phone call from the chairman of the Fort Peck tribe. ER 63- 

64 (120, 122). The chairman was concerned that the Credit Program 

was favoring BIA employees employed on the reservation and that the 

tribe was not receiving reports that it had requested as to how and to 

whom the loans were being made. ER 64 (122-23). This concerned the 

Regional Director. Id. He sent a team to review the Credit Program. 

ER 64 (124). 

As part of the review, the Regional Director found out that White 

Eagle had taken Credit Program loans. ER 64 (124). White Eagle 

oversaw Toni Greybull, who oversaw the head of the Credit Program. 

ER 95 (244); SER 8-9. Both the Regional Director and BIA’s ethics 

officer decided it was a conflict of interest for her to participate in the 

Credit Program that she ultimately oversaw. ER 65 (125-26); ER 83 

(197-98). 

8


Due to White Eagle’s substantial conflict, the Regional Director 

told White Eagle in the fall of 2007 to pay off her Credit Program loan 

and not use the program again. ER 65-66 (127-29), ER 83-84 (198- 

200). 1 It was at this same time that the Regional Director told White 

Eagle to transition oversight of the Credit Program from the BIA to the 

tribe. ER 66 (130-32); ER 366. A directive also went out that 

supervisors of the loan program should no longer take loans from it. 

ER 95 (247). 

White Eagle had earlier been advised about conflicts of interest 

and her ethical responsibilities as a federal employee by an annual 

ethics training in May 2007. ER 80-81 (186-88). Participants received 

an ethics handbook. ER 81 (189-91). 

The handbook notified federal employees that “[a]n employee 

shall not use his public office for his own private gain” — a requirement 

codified in the regulations governing federal employees. Compare ER 

82 (195) with 5 CFR § 2635.702. 

1 

In a 2010 taped interview, White Eagle denied this conversation 

occurred, but then admitted that she agreed not to take any other 

loans. SER 99, 107. The tape recording is in the record, ER 109 (300), 

and the transcript is in the SER. 

9


An employee shall not use or permit the use of his 

Government position or title or any authority associated 

with his public office in a manner that is intended to coerce 

or induce another person, including a subordinate, to 

provide any benefit, financial or otherwise, to himself or to 

friends, relatives, or persons with whom the employee is 

affiliated in a nongovernmental capacity. 

Id. at § 2635.702(a). 

The handbook also informed employees of their obligation not to 

“hold financial interests that conflict with the conscientious 

performance of duty.” Compare ER 82 (193) with 5 CFR 

§ 2635.101(b)(2). For instance, regulations provide that “[a]n employee 

shall not acquire or hold any financial interest that he is prohibited 

from acquiring or holding . . . by reason of an agency determination of 

substantial conflict . . ..” 5 CFR § 2635.403. As White Eagle’s 

supervisor, the Regional Director could decide that a loan from those 

White Eagle supervised constituted a substantial conflict: 

An agency may prohibit or restrict an individual employee 

from acquiring or holding a financial interest or a class of 

financial interests based upon the agency designee’s 2 

2 

Agency designee refers to any employee who, by agency 

regulation, instruction, or other issuance, has been delegated authority 

10


determination that the holding of such interest or interests 

will: 

(1) Require the employee’s disqualification from 

matters so central or critical to the performance of his 

official duties that the employee’s ability to perform 

the duties of his position would be materially impaired; 

or 

(2) Adversely affect the efficient accomplishment of the 

agency’s mission because another employee cannot be 

readily assigned to perform work from which the 

employee would be disqualified by reason of the financial interest. 

Id. at § 2635.403(b). Loans qualify as such financial interests. Id. at 

§ 2635.403(c)(1) (defining term); see also id. at Example 2. 

Finally, the handbook notified employees of their duty to “disclose 

waste, fraud, abuse, and corruption to appropriate authorities.” 

Compare ER 82 (195) with 5 CFR § 2635.101(b)(11). White Eagle 

understood her duty to report waste, fraud and abuse, SER 12, 47, 119, 

which is also contained in DOI Departmental Manual 355, Part 2.4 

(B)(2); see http://elips.doi.gov/ELIPS/DocView.aspx?id=1118. 

to make any determination, give any approval, or take any other action 

required or permitted by this part with respect to another employee. 5 

CFR § 2635.102(b). 

11


IV. 

White Eagle writes a false letter to Greybull’s mother to 

conceal a fraudulent loan that Greybull had taken from 

the Credit Program in her mother’s name. 

In September 2007, Greybull’s mother —Patricia Menz— learned 

that at least four tribal loans had been taken out in her name without 

her knowledge. ER 59 (101-04). She learned this after stopping in to 

the Credit Program office. ER 59 (102-04); 94 (241). Even though she 

did not challenge the loans on the spot, the employee handling it (and 

who was involved in the fraud) knew Menz was surprised by them. ER 

60 (105); 94 (241-42). Menz contacted the fraud hotline for the Office of 

Inspector General for the Department of Interior, which is the 

Department that oversees the BIA. ER 61 (109). 

Aware that Menz had discovered an unauthorized loan taken out 

in her name — but apparently unaware that Menz had complained to 

the Inspector General — White Eagle sent a letter to Menz on 

December 12, 2007, that falsely stated the Menz loans had been fully 

repaid. ER 61 (110-11); ER 239. The Menz loans had not been repaid. 

ER 53 (77). White Eagle never reported the fraud to her superior. ER 

69 (141-42). Although Menz thought White Eagle was addressing the 

12


complaint she had made to the Inspector General, ER 61 (112), that 

particular complaint was still making its way through the bureaucracy. 

The Menz complaint was reviewed by the Inspector General’s 

Complaint Review Group. ER 108 (296). Although the complaint 

involved a low-dollar fraud allegation (approximately $4,500), the 

matter was referred through official channels to the BIA for an internal 

review because the complaint involved a BIA employee (Greybull). Id. 

The Menz complaint eventually arrived to White Eagle’s supervisor in 

February of 2008. ER 68 (137-39); ER 129 (378). 

Rather than conducting the investigation himself, and to avoid a 

appearance of impartiality, the Regional Director asked his Deputy 

Regional Director to conduct an inquiry because Greybull had filed an 

Equal Employment Opportunity action against the Regional Director 

after he stopped her promotion to Deputy Superintendent for Fort 

Peck. ER 67-68 (136-37, 139); ER 85 (207). White Eagle had 

unilaterally appointed Greybull to the position in January 2008 while 

the Regional Director was out of the office. Id. 

Unaware of White Eagle’s earlier letter to Menz claiming the 

matter was settled, the Deputy Regional Director notified White Eagle 

13


of the Menz complaint. ER 130 (383). He asked her for any 

information she had on the matter. Id. White Eagle contacted Toni 

Greybull, who wrote a letter suggesting the loan in her mother’s name 

was a “computer glitch” and that her mother’s accusations either 

stemmed from mental illness or vindictiveness over a transfer of land. 

ER 245-46. Greybull also obtained written statements from her 

siblings that were designed to discredit their mother. ER 103-04 (278- 

80); ER 247-50. At least one of those siblings had participated in 

Greybull’s scheme to defraud the Credit Program by receiving excessive 

and unauthorized loans from the program. ER 103 (277). 

The Deputy Regional Director relied on the information provided 

by White Eagle and Greybull to conclude that Menz’s complaint lacked 

merit. ER 68-69 (139-41). A letter to that effect went to the head of the 

BIA. ER 244. White Eagle said she never reviewed the loan files to 

make any independent determination of the merit to the Menz 

complaint, even though she admitted that such a review would have 

resolved the issue. SER 40, 42-43. 

14


V. Despite a prohibition on taking further loans from the 

Credit Program, White Eagle has Greybull approve her for 

a loan from the Credit Program the day before writing the 

false letter to Greybull’s mother. 

On December 11, 2007, White Eagle applied for a $15,000 loan 

with payment to come from a $300 bi-weekly payroll deduction and 

$2,737 annual income from White Eagle’s trust land. ER 97-98 (253- 

58); ER 284-86. These payments equaled about $10,500 annually on 

the loan. ER 99 (263); ER 127 (372); ER 140 (423); ER 287. White 

Eagle said the money would pay for furniture so she could move into 

the Superintendent’s quarters. ER 287. It was unclear why White 

Eagle (who made $106,000 per year) qualified under the Credit 

Program as one who could not obtain credit through regular channels. 

ER 123 (354-55); ER 210 at 1; SER 92. 

In addition to the fact that White Eagle had been told by her 

direct supervisor to pay off her loans and not take any further loans 

from the Credit Program, the loan had a number of oddities. The 

timing of White Eagle’s loan request was odd since it was the office’s 

busiest time of the year and White Eagle had lived in her own home up 

until that point, so it was unclear why she was buying furniture to 

15


move into the Superintendent’s quarters. ER 96 (250-51). When the 

employee in charge of processing the loan said that he wanted to wait 

until the Christmas rush was over to process the loan, Greybull —who 

was no longer with the Credit Program— processed it herself. ER 97 

(252-53). The loan as finally processed by Greybull removed the pledge 

of annual income from White Eagle’s trust land from the repayment 

plan. ER 97 (253-54); ER 299. And even though White Eagle was the 

Superintendent, Greybull —who was White Eagle’s subordinate— 

signed the application as Superintendent for White Eagle. ER 97 (255); 

ER 299. A year later, White Eagle had paid much less than the annual 

$10,500 that she agreed to pay. ER 99-100 (263-64). White Eagle 

never told the Regional Director that she took out the loan. ER 67 

(135). 

White Eagle had used her authority as Superintendent to get 

what she wanted from the Credit Program before. In 2007, a hold was 

placed on White Eagle’s loan account after she co-signed for a woman 

who later defaulted. ER 89 (222-24); ER 92 (232). As co-signer, White 

Eagle should have paid the delinquent loan. ER 89 (223). When a 

Credit Program employee would not release the hold on White Eagle’s 

16


account, White Eagle went to Greybull and had Greybull order the 

employee to release the hold. ER 89-90 (223-24); ER 96 (248-49). 

VI. 

After Greybull’s death, White Eagle covers up a loan that 

Greybull had taken out in her sister’s name. 

Back in 2001, Greybull convinced her sister to take out a loan for 

Greybull. ER 101 (269-71). Greybull explained that, as the BIA 

Administrator, she was prohibited from taking a loan in her own name. 

Id. She told her sister that she would put up livestock and a life 

insurance policy as security. Id. 

In May of 2008, after Greybull passed away, her sister went to the 

Credit Program to get the loan paid off with Greybull’s life insurance 

even though the loan was in the sister’s name. ER 101-02 (270-73); 

SER 85-86, 88. The loan — on which no interest had been paid — 

exceeded $10,000. Id. The loan specialist and the sister went to see 

White Eagle about the matter. ER 102 (274). The sister provided 

White Eagle with the loan in her name and another loan in the name of 

Greybull’s son. ER 102 (274). 

White Eagle told the loan specialist to turn both loans into 

Greybull’s insurance and the loan specialist said, “I don’t think that’s a 

17


good idea. They’ll talk.” ER 102 (274). White Eagle never questioned 

that loans in the name of Toni Greybull’s sister and Toni Greybull’s son 

were actually Toni Greybull’s or that they should be paid out of Toni 

Greybull’s insurance. ER 102 (275). When Greybull’s sister left the 

office, the loan specialist started crying. Id. About two weeks later, 

White Eagle called Greybull’s sister and told her the loan had been 

paid. ER 102 (275). 

Rather than submit the fraudulent loans to Greybull’s life 

insurance, White Eagle had called Greybull’s husband and instructed 

him to pay off the loans. ER 105 (285-86). She told him that his wife 

had two outstanding loans that she wanted paid off with her life 

insurance if anything happened to her. ER 105 (285). Greybull’s 

husband thought the loans were in his wife’s name. ER 105 (285-86). 

The two loans amounted to over $45,000. ER 105 (286-87). 

White Eagle failed to report this illegal conversion to her 

supervisor or to the Office of the Inspector General for criminal 

investigation, although she later admitted that she knew of her 

obligation to do so. SER 89-94; ER 134 (398). The Credit Program was 

not fully investigated, and the rampant fraud not discovered, until after 

18


elected tribal authorities requested an inquiry in July 2009. ER 107 

(295). 

VII. White Eagle is sentenced to 51 months for her role in the 

Credit Program fraud and cover up. 

White Eagle was charged with various counts related to her role 

in the fraudulent loan scheme and its cover up. ER 1-12. She was 

found guilty of all six counts. ER 162 (510-11). At sentencing, she 

challenged the application of the four-level enhancement for a loss 

exceeding $10,000. ER 164 (4). 

The district court started with the bribery guideline, USSG 

§ 2C1.1. ER 169 (22). It determined that § 2C1.1(b)(2) required it to 

refer to the loss calculation guideline of § 2B1.1, because the $15,000 

loan amount equated to the bribe that White Eagle received and that 

exceeded $5,000. ER 169 (23). Referring to § 2B1.1(b)(1), it then 

decided that the loss suffered was more than $10,000, so the four-level 

enhancement applied. Id. 

The loss exceeded $10,000 because Application Note 3(A) to 

§ 2B1.1 calculates the loss as the greater of actual loss or intended loss. 

Id. Intended loss means “the pecuniary harm that was intended to 

19


result from the offense.” Id. (quoting Application Note 3(A)(ii)(I)). As 

the court found that the bribe White Eagle received for her efforts was 

the $15,000 additional loan money, it concluded that $15,000 was the 

intended pecuniary harm and therefore the intended loss. ER 169 (24). 

Because the court focused on intended loss, rather than actual loss, it 

did not matter what White Eagle had paid back on the loan. Id. 

But the court concluded that even if it included the credits against 

loss provided for under Application Note 3(E) to USSG § 2B1.1, as 

White Eagle argued it should, that the four-level enhancement still 

applied. ER 169-70 (24-25). The court found the loss due to the offense 

was detected on August 6, 2009, as testified to by the investigating 

agent. ER 167 (13); ER 170 (25). And the balance on the loan at that 

time was $12,992 — again testified to by the agent. ER 167 (15); ER 

170 (25). For that reason, even reducing the loan by White Eagle’s 

payments left a loss exceeding $10,000. 

The district court sentenced White Eagle to 51 months in prison 

followed by three years of supervised release. ER 172 (36). 

20


SUMMARY OF ARGUMENT 

White Eagle attempts to excuse or explain away the criminality of 

her actions. The jury found, after being properly instructed, that her 

conduct did come within the reach of each statute charged and found 

her to be guilty beyond a reasonable doubt. Viewed in the light most 

favorable to the prosecution and resolving competing inferences in 

favor of the prosecution, the jury had sufficient evidence to do so. 

The district court did not abuse its discretion in applying the fourlevel 

enhancement from § 2B1.1 for a loss exceeding $10,000. Its 

findings of $15,000 in intended harm and $12,992 of loss at the time 

White Eagle’s offense was discovered were not clearly erroneous. 

ARGUMENT 

I. The evidence of White Eagle’s guilt is sufficient to support 

her conviction on all six counts. 

Standard of Review: Objections to the sufficiency of the 

evidence, if preserved at the close of evidence, are reviewed de novo. 

United States v. Green, 592 F.3d 1057, 1065 (9th Cir. 2010). In 

assessing the sufficiency of the evidence post-verdict, the Court must 

ask “whether, after viewing the evidence in the light most favorable to 

21


the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 

443 U.S. 307, 319 (1979) (emphasis in original). 

First, a reviewing court must consider the evidence presented at 

trial in the light most favorable to the prosecution. Jackson, 443 U.S. 

at 319. This means that a court may not usurp the role of the finder of 

fact by considering how it would have resolved the conflicts, made the 

inferences, or considered the evidence at trial. See Id. at 318-19. 

Rather, when “faced with a record of historical facts that supports 

conflicting inferences” a reviewing court “must presume — even if it 

does not affirmatively appear in the record — that the trier of fact 

resolved any such conflicts in favor of the prosecution, and must defer 

to that resolution.” Id. at 326. 

Second, the court must determine whether this evidence, so 

viewed, is adequate to allow “any rational trier of fact [to find] the 

essential elements of the crime beyond a reasonable doubt.” Id. at 319. 

Obviously, more than a “mere modicum” of evidence is required to 

support a verdict, id. at 320, but appellate review cannot be a search 

for inference, interpretation, weight, or credibility determinations that 

22


are designed to find a conclusion contrary to the verdict. A reviewing 

court may not “ask itself whether it believes that the evidence at the 

trial established guilt beyond a reasonable doubt,” only whether “any” 

rational trier of fact could have made that finding. Id. at 318-19 

(internal citation & quotation marks omitted). 

Argument: White Eagle contends there was insufficient evidence 

to sustain her conviction on any count of the Indictment. 

A. There was sufficient evidence to prove White Eagle 

guilty of conspiracy as well as theft and conversion 

from an Indian tribal organization (Counts I, II). 

White Eagle was convicted of conspiracy to convert tribal credit 

program proceeds by a federal employee (Count I) and theft and 

conversion from an Indian tribal organization (Count II). There was 

sufficient evidence to support both counts. 

The district court identified the elements of conspiracy: 

(1) an agreement between two or more persons to commit at least 

one crime as charged in the Indictment; 

(2) the defendant became a member of the conspiracy, knowing of 

at least one of its objects and intending to help accomplish it; and 

23


(3) one of the members of the conspiracy performed at least one 

overt act for the purpose of carrying out the conspiracy. 

ER 145 (441-42). 

It also identified the elements of theft/conversion from an Indian 

tribal organization for this case: 

(1) the defendant embezzled, stole, knowingly converted, willfully 

misapplied, or willfully permitted to be misapplied, goods, assets, or 

property; 

(2) the goods, assets, or property belonged to the Fort Peck Credit 

Program of the Assiniboine and Sioux Tribes, an Indian tribal 

organization, or were entrusted to the custody or care of any officer, 

employee, or agent of an Indian tribal organization; and 

(3) the goods, assets, or property were of a value of more than 

$1,000. 

ER 145 (444-45). 

There was sufficient evidence to establish a conspiracy between 

White Eagle and Greybull to commit conversion of tribal credit 

program proceeds. As the Court instructed the jury, “embezzle means 

to knowingly and deliberately take or convert to one’s own use, the 

24


goods, assets, or property of another that lawfully came into one’s 

possession by virtue of some office, employment, or position of trust.” 

ER 147 (451-52). Greybull used her position overseeing the Credit 

Program to convert Credit Program funds to her own use. White Eagle 

then helped cover up that embezzlement by writing the letter to 

Greybull’s mother and not reporting the embezzlement to her superiors 

despite her obligations to do so. The jury could infer an agreement 

between the two based on their actions. 

There was also sufficient evidence that White Eagle embezzled, 

converted, willfully misapplied, and willfully permitted misapplication 

of the tribal assets in the Credit Program. By obtaining loan monies 

that her supervisor had prohibited her from taking due to her conflicts 

of interest (and by doing so with her subordinate signing as 

Superintendent), White Eagle willfully misapplied the funds of the 

Credit Program (and willfully permitted Greybull to misapply them.) 

As the jury instructions explained, “misapplies means an unauthorized 

. . . or wrongful use of the goods assets or properties of another person 

or entity.” ER 147 (451). White Eagle’s use of the loan monies was 

unauthorized and wrongful. And she knew it. Her actions also 

25


constituted embezzlement and conversion since she used her lawful 

authority over the funds to gain what was an otherwise unauthorized 

possession of the funds. 

White Eagle argues that the only prohibition on borrowing shown 

by the government was “an alleged request by her supervisor not to 

borrow from the program.” Br. at 17. Her supervisor did not “request” 

that she not borrow from the program. He “directed her” not to borrow 

from it. ER 65 (127). His determination that borrowing from the 

program constituted a substantial conflict for her, along with his 

directive not to borrow due to that conflict, carried the power of law 

prohibiting her from participating in the program. 5 CFR § 2635.403. 

Nor was she authorized to borrow from the Credit Program in the 

manner that she borrowed from it. The jury could infer that she used 

her position as Superintendent (by writing the false letter to Menz) to 

induce Greybull to approve her loan, in violation of 5 CFR 

§ 2635.702(a). 3 

3 

An employee shall not use or permit the use of his Government 

position or title or any authority associated with his public office in a 

manner that is intended to coerce or induce another person, including a 

subordinate, to provide any benefit, financial or otherwise, to himself or 

26


White Eagle suggests she was not in a position to embezzle, 

convert, or misapply the loan monies, because the BIA no longer had 

supervisory authority over the program at the time of her actions. Br. 

at 17. 4 

But that is contrary to the evidence. When White Eagle took 

the loan, the BIA had not yet ended its supervision. White Eagle and 

the tribe were fighting to keep the BIA involved. ER 67 (133-34). BIA 

oversight ended a year later. ER 122 (352-53). Even though the initial 

funding from the United States had been paid off, the Declaration of 

Policies and Plan of Declaration governing the Credit Program did not 

just apply to loans from that initial funding. It applied to “all other 

tribal funds, either local or Treasury, which may be authorized by the 

Tribes for credit purposes.” ER 210 (see 2). And it required loans 

from the Credit Program to be approved by the BIA Superintendent or 

to friends, relatives, or persons with whom the employee is affiliated in 

a nongovernmental capacity. 5 CFR § 2635.702(a) 

4 

White Eagle’s citation to 25 CFR § 140.5(f) is unhelpful. Br. at 

18. That provision simply states that nothing in the regulations 

governing trading or contracting by BIA employees with Indians, 25 

CFR § 140.5, shall prevent a BIA employee from receiving benefits 

made generally available to the tribe. It does not immunize BIA 

employees against other regulatory prohibitions against their receipt of 

benefits generally available to the tribe. 

27


a higher BIA authority. ER 218 (see 18.) That is why White Eagle 

had Greybull sign off on her loan in White Eagle’s capacity as BIA 

Superintendent. ER 299. 

White Eagle also says she did not violate the law, because the 

Credit Program “consented to lend [her] money” and the Credit 

Program’s current director and chief financial officer established “the 

Program and the Tribe were very satisfied” with her loan. Br. at 21-22. 

But under the Declaration of Policies governing the Credit Program, 

the tribe and the Credit Program could not consent without the BIA 

Superintendent’s approval. ER 218 (see 18.) That White Eagle 

(acting through her subordinate) provided the final “consent” for the 

loan made the act a misapplication, conversion, and embezzlement. 

The evidence also established that the Credit Program was being run 

by the individuals committing the fraud and that Greybull often 

authorized loans in place of the Credit Committee. ER 91 (230); ER 95 

(244); ER 119 (339). 

The Credit Program’s director only testified that White Eagle’s 

loan payments were current, not that the Tribe was “very satisfied” 

with the loan. He admitted on cross-examination that White Eagle had 

28


paid far less on the loan than her loan application indicated she would 

pay. ER 127 (373). As for the chief financial officer, she was not the 

chief financial officer when the fraud was going on — a man named 

Fred Reed was. ER 137 (411-12). But even if she had been, she 

admitted that she did not care if the loan was fraudulent, only that it 

was getting paid. ER 141 (426). She also said that she was not 

claiming White Eagle’s loan was “a good loan.” ER 141 (427). 

White Eagle claims that she did not convert money, because there 

was no intent to deprive the tribe of the use or benefit of its money. Br. 

at 21. But simply because she paid back the unauthorized loan with 

interest over time does not mean that she did not intend to deprive the 

owner for a time of its use anymore than a bank employee who takes an 

unauthorized loan that he intends to pay back. Accord, United States v. 

Dreitzler, 577 F.2d 539, 546 (9th Cir. 1978) (misapplication occurred 

even where bank employee intended to repay loans). 

B. There was sufficient evidence that White Eagle 

accepted a bribe from Greybull (Count III). 

The court identified the elements of the bribery charge as: 

(1) the defendant was a public official; 

29


(2) the defendant received something of value in return for being 

induced to do or omit to do an act in violation of her official duty; and 

(3) the defendant acted corruptly — that is intending to be 

induced to do or omit to do an act in violation of her official duty. 

ER 146 (446). 

White Eagle had an official duty as Superintendent to report 

fraud and corruption. But she covered up the fraudulent loans 

Greybull took out in Patricia Menz’s name by writing the letter to 

Greybull’s mother in return for Greybull authorizing her loan. 

Greybull used the tribal money to bribe White Eagle. The jury could 

infer that a quid pro quo existed between the two based on the timing 

of White Eagle’s letter to Menz and White Eagle’s loan application, 

Greybull’s effort to rush the loan application through, and White 

Eagle’s later efforts to continue covering up Greybull’s fraud. White 

Eagle applied for her loan on December 11. She then wrote the letter 

to Greybull’s mother the next day. Greybull rushed to process White 

Eagle’s loan when a Credit Program employee wanted to delay until 

after the Christmas rush. Greybull also reduced White Eagle’s 

scheduled payments. 

30


White Eagle claims that she could not be accused of trying to 

suppress the Menz complaint because Menz had already reported the 

matter to the Inspector General’s office and did not attempt to 

withdraw the complaint after receipt of the White Eagle letter. Br. at 

23-24. But there is no evidence that White Eagle knew Menz had 

complained to the Inspector General when she wrote to Greybull’s 

mother and lied about her loans. She said that Menz either stopped by 

the Credit Program office or wrote it a letter. 5 

SER 36. That Greybull’s 

mother had already filed a complaint, unbeknownst to White Eagle, 

does not exculpate her for trying to head off the filing of such a 

complaint. White Eagle is correct that Greybull’s mother did not 

attempt to withdraw her complaint. But that was because she thought 

her complaint had been addressed, so there was no complaint to 

withdraw. When the Inspector General directed the complaint from 

Greybull’s mother to White Eagle’s supervisor in February 2008, White 

5 

As Menz testified that she never complained to the Credit 

Program, it is most likely that the Credit Program employee —who 

realized Menz was concerned and knew about the fraud— reported 

Menz’s concern to Greybull and Greybull told White Eagle. 

31


Eagle again assisted Greybull in trying to contain the complaint and 

deflect further inquiry into the Credit Program. 

White Eagle argues that it was the credit committee, not 

Greybull, who approved the loan to White Eagle. Br. at 23. She cites 

25 CFR § 101.6(b) to argue that a BIA official’s signature was not 

necessary. Br. at 25. But that begs the question of why she had/needed 

Greybull’s signature. The answer is that § 101.6(b) requires approval 

“by the body authorized to act on loans and modifications thereof as 

provided in an approved declaration of policy and plan of operation or 

other plan.” Under the Declaration of Policy and Plan of Operation in 

place here, that approving body included the BIA Superintendent. ER 

218 at 18. 

Finally, White Eagle claims she could not be bribed for an official 

act performed several weeks before the bribe money was provided. Br. 

at 23-26. She makes much of the Indictment’s statement that she 

received value on January 2 — after the Menz letter. Br. at 23-24. But 

the Indictment does not limit when the agreement for her to receive 

those loan proceeds was made, nor was it required to do so. Although 

the money may have been exchanged after the corrupt act, the jury 

32


could infer that the deal was struck before it. The Schaffer case that 

White Eagle cites recognizes that bribery can be established by the 

“promise . . . of something in return for some action in the future.” 

United States v. Schaffer, 183 F.3d 833, 841 (D.C. Cir. 1999), vacated 

240 F.3d 833 (D.C. Cir. 2001). 

C. There was sufficient evidence that White Eagle 

concealed material facts from the Bureau of Indian 

Affairs (Count IV). 

The court identified the elements of Count IV: 

(1) the defendant had a duty to disclose that Toni Greybull, a 

prohibited borrower, used nominee borrowers to extract monies and 

funds from the accounts of the Fort Peck Credit Program; 

(2) the defendant falsified, concealed, or covered up such a fact by 

trick, scheme, or device; 

(3) the falsified, concealed, or covered up fact was material; 

(4) the defendant knowingly and willfully falsified, concealed, or 

covered up a material fact; and 

(5) a material fact was within the jurisdiction of the Bureau of 

Indian Affairs, U.S. Department of Interior. 

33


White Eagle’s duty to disclose arose from her status as a federal 

employee. She knowingly and willfully concealed Greybull’s fraudulent 

loans by writing the false letter to Greybull’s mother, suggesting to 

Greybull’s husband that he had to pay the loans in his sister-in-law’s 

name and in his son’s name, and by not reporting that Greybull had 

taken loans in the names of her mother, sister, and son. These facts 

materially established Greybull’s fraudulent acts as a BIA officer. 

White Eagle claims that the evidence was undisputed that she 

disclosed the fraud involving Greybull’s sister to the Deputy Regional 

Director. Br. at 26. But the Deputy Regional Director testified that 

she did not disclose the material facts to him. White Eagle never 

advised that the monies had been extracted by obtaining the loan in 

someone else’s name. ER 131 (389). He never even heard the name of 

Greybull’s sister until he was interviewed by the Inspector General’s 

office in October 2010. ER 133 (397). Had White Eagle provided him 

with all of the material information —namely that Greybull had 

obtained the funds by taking them out in her sister’s name— he 

believed that he would have reported the matter up the chain of 

34


command. ER 134 (398). And White Eagle simply ignores her failure 

to report the fraud involving Greybull’s mother. 

That White Eagle sought to avoid an insurance company 

investigation by telling Greybull’s husband to pay off the loans, under 

the false pretense they were in his wife’s name, further demonstrates 

that White Eagle knew she was concealing material facts. While there 

was evidence that loan specialist Pipe did not know how to process the 

life insurance (compare Br. at 26 and ER 91 (228)), the evidence also 

demonstrated that Pipe knew it was not “a good idea” to file a claim 

because “they’ll talk”, i.e. the life insurance company might investigate 

the claims and discover their fraudulent nature. ER 102 (274). The 

jury could infer that Pipe broke down in tears, because she was worried 

that the fraudulent scheme with White Eagle, Greybull, and the rest of 

the Credit Program office would be revealed. 

D. There was sufficient evidence that White Eagle 

engaged in official acts affecting her own personal 

financial interests (Count V). 

The court identified the elements of Count V, the conflict of 

interest charge: 

35


(1) the defendant was an officer or employee of the executive 

branch or any independent agency of the United States, such as the 

BIA; 

(2) the defendant participated personally and substantially as a 

government officer or employee through decision, recommendation, or 

rendering of advice; 

(3) the defendant knew she had a financial interest in the 

particular matter. 

ER 147 (450). 

Greybull’s sister approached White Eagle claiming that Greybull’s 

life insurance should pay off loans held in the name of the sister and 

Greybull’s son. She told White Eagle that the loans were really 

Greybull’s. White Eagle had two identifiable financial interests in 

resolving that claim: first, she wanted to keep the pillaging of the credit 

program going so that she could take more loan money from the 

program in the future, which she did in June of 2009 (ER 316), and 

second the security of her $101,346 per year position (see ER 305). 

36


If it was discovered that Greybull and the Credit Office employees 

had defrauded the program, the inability of White Eagle or any of the 

other corrupt employees to continue their participation in the program 

would seem a logical repercussion. If it was discovered that under her 

watch as Superintendent that she had turned a blind eye to corruption 

and indeed participated in it — after being expressly told NOT to do so 

— a logical consequence of such malfeasance would be termination from 

government service entirely, or at least a loss of position. So White 

Eagle decided not report the fraud and conceal it from further review, 

by convincing Greybull’s husband to pay off the loans. This prevented 

further inquiry, protected her job, and permitted White Eagle to obtain 

additional loans in the future which, as noted earlier, she did in June of 

2009 when she again had a subordinate sign off as Superintendent to 

approve a loan for her from the Credit Program. ER 86-87 (211-13); ER 

317. 

White Eagle suggests the statute of conviction requires her to “be 

involved on both sides of one matter.” Br. at 29. There is no such 

requirement in the statutory language. The statute requires White 

37


Eagle to “participate[] personally and substantially as a Government 

officer or employee . . . in a . . . claim, controversy . . . or other 

particular matter in which, to [her] knowledge, [s]he . . . has a financial 

interest.” 18 U.S.C. § 208(a). She did that. 

To the extent that White Eagle is trying to suggest that § 208(a) 

is limited to the awarding of contracts (Br. at 29), the plain language 

and legislative history indicate the provision is broader in scope. 

“Section 208(a) would prohibit not merely ‘transacting business’ with a 

business entity in which the government employee is interested but 

would bar any significant participation in government action in the 

consequences of which to his knowledge the employee has a financial 

interest.” United States v. Irons, 640 F.2d 872, 878 (7th Cir. 1981) 

(quoting H.R. Rep. No. 748, 87th Cong., 1st Sess. 24 (1961)). 

Her suggestion that the violation here is “an attempt to allege 

misprision of a felony, which is already alleged at Count VI” (Br. at 30 

and 34 (discussing multiplicity)) fails to understand that while the two 

crimes have overlapping factual components, neither is the lesserincluded 

offense of the other. For a § 208(a) violation, White Eagle had 

38


to make the decision to cover up Greybull’s fraud in her capacity as a 

federal officer and needed a financial interest in her decision. Neither 

is required for misprision. For misprision, a felony had to have been 

completed by another person and White Eagle had to fail to notify the 

authorities and take an affirmative step to conceal that crime — 

neither was required for § 208(a). 

crime; 

E. There was sufficient evidence to prove White Eagle 

guilty of misprision of a felony (Count VI). 

The court identified the elements of the misprision count: 

(1) another person committed and completed a felony crime; 

(2) the defendant had full knowledge of the commission of the 

(3) the defendant failed to notify the authorities; and 

(4) the defendant took an affirmative step to conceal the crime. 

ER 147 (451). 

There was sufficient evidence presented to support White Eagle’s 

conviction for misprision. White Eagle knew that a crime had occurred 

because Greybull’s sister told White Eagle of the fraud and admitted 

her own involvement (i.e. agreeing to be a nominee borrower). ER 101 

39


(269). White Eagle then failed to disclose that a crime had been 

committed. Instead she took the affirmative step to conceal the crime 

by convincing Greybull’s husband to pay off the loans quickly and 

quietly, thereby assuaging Christiansen’s concerns and suppressing any 

motivation to contest the loans to other federal . This constitutes 

misprision of a felony. 

White Eagle argues that she had a Fifth Amendment right to 

conceal the fraud because it would have incriminated her to make the 

disclosure. She cites United States v. King, 402 F.2d 694, 697 (9th Cir. 

1968), and United States v. Kuh, 541 F.2d 672 (7th Cir. 1976). But 

White Eagle would not have incriminated herself by disclosing the 

fraud involving Greybull’s family members. Unlike King and Kuh, she 

did not have to reveal her own substantive criminal conduct to escape 

the misprision charge or the § 208(a) charge discussed above. White 

Eagle’s misprision involved a failure to report frauds (Greybull’s loans 

using her sister and husband) to which White Eagle was not a party. 

Accord United States v. Daddano, 432 F.2d 1119 (7th Cir. 1970) and 

Kuh, 541 F.2d at 676-77 (Daddano “presented a situation wherein an 

40


entirely separate offense from that involved in the original bank 

robbery was the means employed to mislead the federal authorities.”) 

It is true that revealing the fraud involving the loans in the 

names of Greybull’s sister and son had the potential to indirectly reveal 

her involvement in a crime if it led to a deeper investigation. And there 

is language in King and Kuh to suggest the Fifth Amendment protects 

against indirectly revealing one’s crimes. “The privilege guaranteed by 

the Fifth Amendment not only extends to statements that would in 

themselves support a conviction but likewise embraces those which 

would furnish a link in the chain of evidence needed to prosecute the 

individual for a crime, provided such individual has reasonable cause to 

fear he might thereby be convicted of that crime.” King, 402 F.2d at 

697. A conviction cannot stand when “[t]he factual allegations . . . are 

sufficient to engender in the defendants reasonable cause to believe 

that disclosing information as to their knowledge of the (underlying 

‘actual commission of a felony’) would place them in the position of 

furnishing the government with evidence that could lead to their 

prosecution or conviction.” Kuh, 541 F.2d at 677. 

41


But the connection between the disclosure and the risk of 

prosecution must be more direct than it was here. The fact that 

disclosing Greybull’s fraud involving her family might lead to an audit 

and that audit might then expose other frauds that might eventually 

implicate White Eagle is not sufficient. White Eagle lacked the 

“reasonable cause” from King and Kuh to believe that notifying the 

authorities of the fraud involving Greybull’s sister and husband would 

somehow lead to a greater investigation that would ultimately ensnare 

herself. The Credit Program had already gone through one 

investigation of fraud in the Menz case without an extensive audit. 

Moreover, White Eagle has continually claimed that she did not believe 

the taking of the $15,000 loan was wrongful, much less criminal, and 

therefore she could not have believed that disclosing the fraud 

involving Greybull’s family would lead to her own prosecution. 

In this case, the distance between the disclosure of Greybull’s 

fraud involving the loans to her son and sister from the reasonable 

likelihood that the disclosure would subject her to prosecution is too 

42


tenuous to warrant dismissal of the misprision or the conflict of interest 

count. 

II. 

The sentence imposed was reasonable. 

Standard of Review: This Court “review[s] the district court’s 

interpretation of the Sentencing Guidelines de novo, its application of 

the Guidelines to the facts for abuse of discretion, and the district 

court’s factual findings for clear error.” United States v. Goodbear, 676 

F.3d 904, 909 (9th Cir. 2012). 

Argument: White Eagle argues the district court erred in 

determining the loss amount for purposes of calculating her advisory 

guideline range. Because the $15,000 loan was paid down before its 

discovery, she says the application notes relating to loss indicate that 

the loss for which she is accountable should be reduced by the amounts 

she paid on the loan. Br. at 34-36. 

The district court did not clearly err in its loss calculations. The 

application notes to USSG § 2B1.1 provide that loss “is the greater of 

actual loss or intended loss.” USSG § 2B1.1, comment. (n.3(A)). 

“Intended loss” means “the pecuniary harm that was intended to result 

43


from the offense.” USSG § 2B1.1, comment. (n.3(A)(ii)). “Pecuniary 

harm” means “harm that is monetary or that otherwise is readily 

measurable in money.” USSG § 2B1.1, comment. (n.3(A)(iii)). 

The district court found that the intended loss here equated to the 

amount of the loan paid as a bribe: $15,000. ER 169 (24). White 

Eagle’s unauthorized loan deprived the tribe of the full $15,000, so that 

the tribe did not have that money in their coffers for making other 

loans or earning interest while it was in her possession. White Eagle 

argues that there is no pecuniary harm since the $15,000 loan was a 

loan that was to be repaid. Br. at 35. But nothing in the definition of 

pecuniary harm suggests that because the loan was to be repaid, it did 

not result in pecuniary harm. Intended pecuniary harm even includes 

“pecuniary harm that would have been impossible or unlikely to occur.” 

USSG § 2B1.1, comment. (n.3(A)(ii)). 

White Eagle argues that her starting loss amount should not 

exceed $11,500, because she had a balance of around $3,500 from other 

loans when she received the $15,000 loan. Br. at 36. But simply 

44


because the $15,000 loan was used to pay off these other loans does not 

reduce the value that White Eagle received. See ER 309-10. 

White Eagle then makes two arguments that the $15,000 amount 

should be reduced by the amounts she paid back on her prohibited loan. 

She first argues that the language and examples in Application Note 3 

to USSG § 2C1.1 emphasize that the relevant value for the guideline is 

the net value. Br. at 34-35. But that language and those examples are 

talking about how to calculate the “benefit received or to be received” 

by the person giving the bribe. USSG § 2C1.1, comment. (n.3). White 

Eagle did not give the bribe, she received the bribe, which the district 

court found to be in the full $15,000 amount of the loan. The 

application note to § 2C1.1 sheds no light on how the value of the bribe 

should be calculated. 

White Eagle’s second argument is that Application Note 3 to 

USSG § 2B1.1 required the court to reduce the loss calculation. Br. at 

36. That application note provides, in pertinent part: 

(E) Credits Against Loss.—Loss shall be reduced by the 

following: 

(I) The money returned, and the fair market value of 

the property returned and the services rendered, by 

45


the defendant or other persons acting jointly with the 

defendant, to the victim before the offense was 

detected. The time of detection of the offense is the 

earlier of (I) the time the offense was discovered by a 

victim or government agency; or (II) the time the 

defendant knew or reasonably should have known that 

the offense was detected or about to be detected by a 

victim or government agency. 

USSG § 2B1.1, comment. (n.3(E)). 

While the Court was free to conclude that the intended pecuniary 

loss caused by White Eagle was the full $15,000 of the loan, as 

discussed above, it also made an alternative calculation that gave 

White Eagle credit for her payments under this application note. The 

investigating agent testified that White Eagle had paid down the loan 

but had also borrowed more from the credit program leaving a balance 

of $12,992 on her loan at the time her offense was discovered. The 

district court adopted this figure as the loss after crediting White 

Eagle’s payments. This was not clearly erroneous. 

White Eagle says that this number penalizes her for subsequently 

borrowing more money on the illegal loan and that the later loan 

increase should be deducted from her loss calculation. Br. at 36. The 

46


flaw in White Eagle’s analysis is her belief that the original illegal loan 

could spawn subsequent legal modifications. The withdrawal of even 

more money from the Credit Program under the platform of an illegal 

“loan” is directly and causally linked to the original crime. Cf. United 

States v. Wilson, 980 F.2d 259, 262 (4th Cir. 1992) (“[I]n the event a 

bank loan legitimately is obtained by one who subsequently submits a 

statement that is required in connection with the loan and that 

statement is false, ... the loss under [the Sentencing Guidelines] is the 

loss that can be attributed to the false statement.”). 

By its guilty verdict on Count II, the jury found that the original 

$15,000 had been stolen from the Tribes. There should have been no 

loan to modify. Additional monies taken on the loan simply continued 

the theft. Otherwise, White Eagle could escape liability by simply 

taking a new loan from the Credit Program to cover the full amount of 

her illegal loan and argue that the illegal loan had been fully repaid. 

47


CONCLUSION 

Florence White Eagle’s convictions and sentence should be 

AFFIRMED. 

DATED this 7th day of June, 2012. 



s/ Carl E. Rostad 


Assistant U.S. Attorney 

Attorneys for Appellee 

48


STATEMENT OF RELATED CASES 

There are no related cases. 








49


CERTIFICATE OF COMPLIANCE 

Pursuant to Fed. R. App. P. 32(a)(7)(c) and Ninth Circuit 

Rule 32-1, the attached answering brief is proportionately spaced, has a 

typeface of 14 points or more, and the body of the argument contains 

9,492 words. 








50


CERTIFICATE OF SERVICE 

I hereby certify that on June 7, 2012, I electronically filed the 

foregoing with the Clerk of Court of the United States Court of Appeals 

for the Ninth Circuit by using the appellate CM/ECF system 

I certify that all participants in the case are registered CM/ECF 

users and that service will be accomplished by the appellate CM/ECF 

system. 




Attorney for Appellee 

51

US Answer Brief - Turtle Talk

Create successful ePaper yourself

Delete template?

Save as template?