                           United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 07-1076
                                     ___________

United States of America,                   *
                                            *
             Plaintiff - Appellee,          *
                                            *
      v.                                    *   Appeal from the United States
                                            *   District Court for the District of
                                            *   South Dakota.
Allen Flying By,                            *
                                            *
             Defendant - Appellant.         *

                                     ___________

                               Submitted: September 25, 2007
                                  Filed: December 26, 2007
                                   ___________

Before MURPHY, MELLOY, and SMITH, Circuit Judges.
                          ___________

MURPHY, Circuit Judge.

        A jury convicted Allen Flying By of embezzlement and theft from an Indian
tribal organization in violation of 18 U.S.C. § 1163. The district court1 sentenced him
to thirty three months and ordered restitution in the amount of $8,200. Flying By
appeals, contending that there was insufficient evidence for a reasonable jury to
convict him, that the trial judge's questioning of witnesses in front of the jury violated


      1
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
his right to a fair trial, and that the amount of loss attributed to him at sentencing was
too high. We affirm.

       Flying By is a member of the Standing Rock Sioux Tribe which is governed by
a tribal council. Each of eight districts elects a representative to the tribal council, and
Flying By served as the tribal council representative for the Running Antelope district.
The districts also each have a district council, and Flying By's cousin, Susie Long Elk,
was the treasurer of the Running Antelope district.

       A fifteen count indictment was filed against Flying By and seven other Running
Antelope officials in February 2006. The indictment charged Flying By with seven
counts of embezzlement and theft, in violation of 18 U.S.C. § 1163, for
misappropriating funds which belonged to the Standing Rock Tribe and which had
been allocated to the Running Antelope district. All of the other defendants entered
into plea agreements and were called by the government as witnesses at Flying By's
trial.

       The defendants were accused of making unauthorized expenditures and
pocketing district funds for private gain by means of cash withdrawals and deceptive
check notations, including for "consultant fees," "travel and research," "workshop,"
and "meetings and mileage." The government contended that the scheme was directed
by Flying By, and that he instructed Long Elk to make cash withdrawals, issue checks,
and distribute the funds to the defendants. When the misappropriation of funds came
to light, tribal proceedings were initiated against several officials and Flying By was
removed as his district's representative to the tribal council.




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       Flying By was convicted of three felony counts of embezzlement and theft and
one lesser included misdemeanor count.2 He was acquitted of two felony counts, and
the district court dismissed another during trial and sentenced Flying By to thirty three
months. On his appeal, he argues that the verdict was based on insufficient evidence,
that he did not receive a fair trial because of the court's questioning of witnesses, and
that the court erred in its finding of the amount of loss attributable to him.

      The jury found Flying By guilty of "embezzl[ing], steal[ing], knowingly
convert[ing] to his use or the use of another, willfully misappl[ying], or willfully
permit[ting] to be misapplied, any of the moneys, funds, credits, goods, assets or other
property belonging to any Indian tribal organization." 18 U.S.C. § 1163. We review
de novo whether the evidence was sufficient to justify his convictions and draw all
reasonable inferences in the light most favorable to the verdict. United States v.
Spears, 454 F.3d 830, 832 (8th Cir. 2006). We may reverse the verdict only if no
reasonable jury could have found the accused guilty. United States v. Jara, 474 F.3d
1018, 1021 (8th Cir. 2007).

       Flying By does not dispute that the funds in question belonged to the tribe, but
he asserts that there was insufficient evidence to sustain his convictions, arguing that
he had no personal control or supervisory authority over tribal funds and was therefore
not responsible for the unauthorized payments. The government disagrees with this
characterization and responds that extensive evidence at trial showed that Flying By
had a central role in embezzling the district funds and that he exercised strong
influence over the district treasurer, his cousin Long Elk.




      2
       The felony convictions involved tribal funds Flying By obtained for a bogus
Rapid City retreat ($2,000 plus lodging); a private trip to an Albuquerque pow wow
($2,000 plus lodging); and a $3,200 wire transfer; his lesser included misdemeanor
offense involved a "travel and research" trip for laundry machines ($1,000 or less).

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      Long Elk testified that "[w]henever [Flying By] needed money to go someplace,
he'd come over and he'd ask me." There was also testimony from other defendants
explaining how Flying By and others obtained district funds from Long Elk for their
own personal use and how Flying By orchestrated the fraudulent scheme. After
reviewing the record and trial transcript, we conclude that the jury's verdict that Flying
By embezzled and stole tribal funds was based on sufficient evidence.

       Flying By also argues that he was prejudiced by the district court's comments
and active involvement in questioning. The government asserts in response that the
district court merely exercised its duty to ensure that witnesses communicate with the
jury in a clear and intelligible manner. See United States v. Dreamer, 88 F.3d 655,
659 (8th Cir. 1996) (trial judge's attempt to clarify confusing and contradictory
witness testimony did not deprive defendant of fair trial).

       Flying By points particularly to the district court's questioning of treasurer Long
Elk and of Virgil Standing Crow, the former vice chairman of the Running Antelope
district council. In an answer to defense counsel Long Elk stated that "consultant
payments" to Flying By and other officials were legitimate expenditures. At her plea
hearing she had testified that the funds had been embezzled, and the district court
asked whether she was sure about the statement she had just made and whether she
would like to speak with her attorney. On redirect examination Long Elk testified that
the consultant payments had not been approved or authorized, explaining that she had
been confused by the earlier question about legitimate expenditures. Later Standing
Crow was asked questions relating to a number of counts in the indictment. After he
denied that he had embezzled tribal money, the district court asked Standing Crow
whether he would like to withdraw his guilty plea and go to trial. Standing Crow said
"no," and the court asked him "what the truth is, sir." Standing Crow responded that
he had embezzled the funds. The district court noted that he had "testified both ways"
and advised him that he should not plead guilty to something he had not done and



                                           -4-
asked whether he would like more time to speak with his attorney. Standing Crow
declined.

        A trial judge is more than a mere moderator of the trial and has the prerogative
to elicit facts necessary to a clear presentation of the issues. United States v. Scott,
26 F.3d 1458, 1464 (8th Cir. 1994). Although a federal trial judge may ask questions
to clarify testimony, the court should not lose its color of neutrality or accentuate the
prosecution's case. United States v. Van Dyke, 14 F.3d 415, 420 (8th Cir. 1994). In
order to avoid affecting the jury by appearing to favor one side or the other, a trial
court should limit its questions to clarification of specific testimony. United States
v. Bland, 697 F.2d 262, 265-66 (8th Cir. 1983). A balancing test is used to evaluate
whether in the context of the overall record the court's questions destroyed the fairness
of a trial. United States v. Bamberg, 478 F.3d 934, 940-41 (8th Cir. 2007).

       In this case the trial court put questions to a number of witnesses. Its questions
were generally designed to clarify the testimony or to draw out the full story of the
witness. The testimony of Long Elk and Standing Crow, for example, covered
multiple transactions and could have confused the jury without clarification of which
incident was being addressed. The trial judge had taken the pleas of the codefendants
and was familiar with their prior testimony. It appears from the trial transcript that
some of the witnesses were confused by the questions put by counsel and somewhat
reticent in their testimony. We conclude that the district court's efforts to clarify
witness testimony were not inappropriate in these circumstances and did not deprive
Flying By of a fair trial, although we note that questions to a witness about consulting
an attorney are preferably asked outside the presence of the jury.

       In contrast to his current arguments about the district court's questions, Flying
By made only a single objection to them at trial. Timely objections are important so
that any error or misunderstanding can be clarified at the trial. United States v.
Williams, 994 F.2d 1287, 1294 (8th Cir. 1993) (issue is preserved for appeal through

                                          -5-
timely objection and clearly stated grounds for the objection so that trial court can
prevent or correct the error); see also United States v. Filker, 972 F.2d 240, 242 (8th
Cir. 1992) ("This court will not reverse a district court on an issue that is raised for the
first time unless a gross miscarriage of justice would otherwise result."). Counsel may
object to questions from the court either instantaneously or at the next available
opportunity when the jury is not present. Fed. R. Evid. 614©). Flying By's sole
objection during the trial came after Standing Crow had answered affirmatively to the
court's question about whether his testimony at his plea hearing, that he had
embezzled $17,000 in checks and cash, was the truth. Defense counsel objected on
the grounds of improper impeachment.

       We review the district court’s overruling of Flying By's objection for abuse of
discretion. See Spencer v. Young, 495 F.3d 945, 949 (8th Cir. 2007) (evidentiary
rulings are generally reviewed for abuse of discretion if objected to at trial). Since the
court's question came after testimony by Standing Crow which was inconsistent with
what he said at his plea hearing, it was not improper. See United States v. Jarrett, 956
F.2d 864, 866 (8th Cir. 1992) (court's comment about inconsistencies between
witness's trial testimony and prior statements did not cross over the line of impartiality
because it was made for clarification). The district court did not abuse its discretion
in overruling the objection.

       If a party failed to object at trial, his complaints are reviewed under a plain error
standard. See United States v. Mink, 476 F.3d 558, 563 (8th Cir. 2007); Fed. R. Crim.
P. 52(b). Under plain error review we will correct an error if it “seriously affect[ed]
the fairness, integrity, or public reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 732 (1993), quoting United States v. Young, 470 U.S. 1, 15
(1985); see also United States v. Parker, 267 F.3d 839, 844 (8th Cir. 2001) ("We will
reverse under plain error review only if the error prejudices the party's substantial
rights and would result in a miscarriage of justice if left uncorrected.").



                                            -6-
        We have carefully reviewed the record and conclude that the court's questions
helped clarify witness testimony for the jury and that neither its questions nor the
reference to counsel seriously affected the fairness or integrity of the trial. One
indication that Flying By suffered no prejudice from the court's questioning was that
he was acquitted on the count about which Long Elk was testifying when she was
asked whether she wanted to speak with her attorney. See United States v. Reeves,
83 F.3d 203, 208 (8th Cir. 1996) (no prejudice since defendant was acquitted on count
involving witness's testimony). And although a trial judge should generally not
suggest in front of the jury that a witness should confer with an attorney, we find no
plain error here when there were contradictions in the testimony. Moreover, the court
instructed the jury in its closing instructions that "nothing I have said or done during
the trial, including questions asked by the court," was intended to indicate an opinion
on what its verdict should be. See, e.g., United States v. Jerde, 841 F.2d 818, 824 (8th
Cir. 1988). Flying By's counsel expressed satisfaction with this instruction and
assured the court "that's all I wanted." There is no showing that the jury failed to
honor this instruction. See Weeks v. Angelone, 528 U.S. 225, 234 (2000) ("A jury is
presumed to follow its instructions."). We conclude that the district court's
questioning of the witnesses did not prejudice Flying By's substantial rights.

      Flying By next argues that the district court erred in its loss calculation and
imposed an excessive sentence. A district court's application of the sentencing
guidelines is reviewed de novo. United States v. Mashek, 406 F.3d 1012, 1016 (8th
Cir. 2006). Findings of fact are reviewed for clear error. United States v. Brave
Thunder, 445 F.3d 1062, 1065 (8th Cir. 2006). The court's sentence is reviewed for
reasonableness, a standard akin to abuse of discretion. United States v. Goody, 442
F.3d 1132, 1134 (8th Cir. 2006).

      The relevant conduct for which a defendant may be held responsible consists
not merely of his own actions, but includes "all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken criminal activity."

                                          -7-
U.S.S.G. § 1B1.3(a)(1)(B). The district court attributed to Flying By a loss exceeding
$70,000, which included the $8,200 received by Flying By as well as the
misappropriated funds distributed by Long Elk to the other defendants. In fashioning
its sentence, the court noted that Flying By was the highest ranking tribal officer
among the defendants and that he had abused the trust placed in him by the tribe.
Rather than reporting the illegal activities, Flying By had planned and directed the
fraudulent scheme by repeatedly telling his cousin Long Elk to withdraw tribal funds.
The court found Flying By fully aware of the illegality of his actions and "not a person
of low intelligence by any means;" he had graduated from college and worked as a
teacher prior to serving as a salaried tribal representative.

       The district court did not err in finding Flying By responsible for the loss
resulting from all reasonably foreseeable acts in furtherance of the scheme. See
U.S.S.G. § 1B1.3(a)(1)(B); see also United States v. Radtke, 415 F.3d 826, 844 (8th
Cir. 2005) (defendant may be held liable for loss caused by fellow participant in
common scheme). Neither did it err by including amounts pertaining to counts of
which he was acquitted. See United States v. Booker, 543 U.S. 220 (2005); see also
United States v. High Elk, 442 F.3d 622, 626 (8th Cir. 2006).

       Flying By also complains that his sentence of thirty three months is excessive
compared to those of his codefendants. The court increased Flying By's base offense
level by eight levels for the amount of loss, pursuant to U.S.S.G. § 2B.1.1(b), two
levels for abuse of a position of trust, pursuant to U.S.S.G. § 3B.1.3, and four levels
for being an organizer and leader of the criminal activity, pursuant to U.S.S.G. §
3B.1.1. See U.S.S.G. § 3B1.3 (abuse of trust adjustment permissible in addition to a
role enhancement unless already included in base offense level). With Flying By's
criminal history category I, the resulting guideline range was 33-41 months, and he
was sentenced at the low point of that range. See, e.g., United States v. Meyer, 452
F.3d 998, 1000 (8th Cir. 2006) (sentence within the advisory guideline range is
presumptively reasonable).

                                          -8-
       The government points out that in complaining about his sentence, Flying By
ignores the differences in roles and conduct among the defendants, including his
leadership in the scheme and his codefendants' willingness to enter into plea
agreements and testify. See United States v. Gallegos, 480 F.3d 856, 859 (8th Cir.
2007) (affirming sentence disparity because one of the defendants provided substantial
assistance to the government). Sentence disparities between dissimilarly situated
defendants are not unwarranted, United States v. Vasquez, 433 F.3d 666, 671 (8th Cir.
2006), and Flying By has not shown that the district court used an impermissible
factor creating unwarranted sentence disparity between the codefendants. See 18
U.S.C. § 3553. We conclude that Flying By has not shown that his sentence was
unreasonable.

      For these reasons, we affirm the judgment of the district court.
                          _________________________




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