                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 23 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-30124

              Plaintiff - Appellee,              D.C. No. 1:12-cr-00103-SPW-3

 v.
                                                 MEMORANDUM*
ALLEN JOSEPH OLD HORN,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 14-30126

              Plaintiff - Appellee,              D.C. No. 1:12-cr-00103-SPW-1

 v.

DALE DREW OLD HORN,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 14-30127

              Plaintiff - Appellee,              D.C. No. 1:12-cr-00103-SPW-5

 v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
SHAWN TALKING EAGLE
DANFORTH,

              Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Susan P. Watters, District Judge, Presiding

                     Argued and Submitted September 1, 2015
                              Seattle, Washington

Before: HAWKINS, GOULD, and IKUTA, Circuit Judges.

      Dale Old Horn, Allen Old Horn, and Shawn Danforth appeal their

convictions for mail fraud under 18 U.S.C. § 1341, conspiracy to commit mail

fraud under 18 U.S.C. § 371, theft from an organization receiving federal funding

under 18 U.S.C. § 666(a)(1)(A), and theft from an Indian tribal organization under

18 U.S.C. § 1163. Allen Old Horn also appeals his convictions for extortion

involving a federally funded program under 18 U.S.C. § 666(a)(1)(B) and federal

income tax fraud under 26 U.S.C. § 7206(1). We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.1




      1
       We also grant Danforth's request to take judicial notice of a transcript of an
audio recording introduced as an exhibit at trial. See Fed. R. Evid. 201(b)(2).

                                          2
      Viewing the evidence in the light most favorable to the prosecution, a jury

could have reasonably concluded that the prosecution proved each element of the

mail fraud counts beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.

307, 319 (1979). A reasonable jury could have found that the prosecution proved

use of the mails based on testimony from the companies that they mailed checks

directly to the monitors. A reasonable jury could have also concluded that the

prosecution proved a scheme to defraud the tribe and the intent to defraud based on

evidence that Dale Old Horn changed the billing practices without consulting the

tribe, that the monitors were paid directly by the companies while continuing to

receive their tribal salaries, that direct payments were limited to family members,

including Allen Old Horn and Shawn Danforth, and that certain family members

attempted to hide the direct payments from the tribe. See Eclectic Properties E.,

LLC v. Marcus & Millichap Co., 751 F.3d 990, 997 (9th Cir. 2014).

      Viewing the evidence in the light most favorable to the prosecution, a

reasonable jury could have concluded that the prosecution proved each element of

a conspiracy under 18 U.S.C. § 371 beyond a reasonable doubt. A reasonable jury

could have inferred an agreement among the defendants to defraud the Crow Tribe

and the requisite intent to do so, based on evidence that the family coordinated its

efforts to maximize direct payments to family members. See United States v.


                                          3
Green, 592 F.3d 1057, 1067 (9th Cir. 2010); United States v. Wright, 215 F.3d

1020, 1028 (9th Cir. 2000).

      A reasonable jury could have also concluded that the prosecution proved

each element of theft from an organization receiving federal funding beyond a

reasonable doubt. A reasonable jury could have concluded that the Crow Tribe

Historic Preservation Office (CTHPO) received over $10,000 per year in federal

funding based on evidence that the tribe and CTHPO received between $83,000

and $102,000 each year from the National Park Service’s Historic Preservation

Fund. A reasonable jury could have found that the defendants embezzled, stole,

knowingly converted, or intentionally misapplied funds that should have gone to

the tribe based on evidence that the monitors received direct payments from the

companies in addition to their tribal salaries, that the tribe’s policy was to recoup

the monitors’ base salaries from the companies, and that the tribe prohibited

outside employment and accepting outside compensation for services performed

during any official duty hours. See United States v. Dupee, 569 F.2d 1061, 1064

(9th Cir. 1978). A reasonable jury could have concluded beyond a reasonable

doubt that the amount of property stolen by the defendants had a value of $5,000 or

more, based on evidence that companies paid more than $500,000 directly to the

monitors for monitoring services instead of making those payments to the tribe,


                                           4
and the monitors retained these payments for themselves rather than remitting them

to the tribe.2

       A reasonable jury could have concluded that the government proved each

element of theft from an Indian tribal organization beyond a reasonable doubt.

Based on the same evidence used to prove theft from an organization receiving

federal funds, a reasonable jury viewing the evidence in the light most favorable to

the prosecution could have concluded that the defendants embezzled, stole,

knowingly converted, or intentionally misapplied funds that belonged to the tribe,

and the funds had a value greater than $1,000. See 18 U.S.C. § 1163.

       Viewing the evidence in the light most favorable to the prosecution, the jury

could have also concluded beyond a reasonable doubt that the prosecution proved

each of the elements of extortion involving a federally funded program under 18

U.S.C. § 666(a)(1)(B) with respect to Allen Old Horn. Based on evidence that

Allen Old Horn threatened to use the power of the tribe to shut down a project if he

was not paid directly and immediately, the jury could have concluded that he

intended to be influenced by illegitimate payments totaling more than $5,000. See



       2
        Because we must view the evidence in the light most favorable to sustaining
the verdict, see United States v. Budziak, 697 F.3d 1105, 1108 (9th Cir. 2012), it is
irrelevant that the government changed its theory regarding the nature of the stolen
property on appeal.

                                          5
United States v. Garrido, 713 F.3d 985, 999–1000 (9th Cir. 2013); United States v.

Simas, 937 F.2d 459, 463 (9th Cir. 1991).

      A reasonable jury could have concluded beyond a reasonable doubt that

Allen Old Horn committed federal income tax fraud under 26 U.S.C. § 7206(1).

Based on evidence that Allen Old Horn overstated his mileage and supplies

expenses on his signed tax return, and testimony from his tax preparer that the

information in the tax return was obtained from Allen Old Horn, a reasonable jury

could have concluded that Allen Old Horn intentionally falsified his expenses in

order to decrease his tax liability and maximize his refund. See 26 U.S.C. §

7206(1).

      The district court did not err in refusing to instruct the jury on the

defendants’ good faith defense because the jury was adequately instructed with

regard to the intent required to be found guilty of each crime charged. See United

States v. Shipsey, 363 F.3d 962, 967 (9th Cir. 2004).

      Even if the district court erred in refusing to instruct the jury on the bona

fide wages defense under 18 U.S.C. § 666(c), any such error would be harmless

because the government presented overwhelming and uncontroverted evidence that

the defendants were not permitted to receive both direct payments and their tribal

salaries. See United States v. Driggers, 559 F.3d 1021, 1025 (9th Cir. 2009).


                                           6
         The district court did not abuse its discretion in refusing to admit

Defendants’ Exhibit 1524 on relevance grounds because a change in policy to

make certain conduct more explicitly prohibited does not show that the conduct

was not prohibited in the first instance. Thus, it was not “illogical, implausible, or

without support in inferences that may be drawn from facts in the record” for the

district court judge to exclude the document on relevance grounds. See United

States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).

         It was not plain error for the district court to exclude Defendants’ Exhibit

1513 because, even if there was error, it did not affect the defendants’ substantial

rights. See United States v. Hayat, 710 F.3d 875, 894–95 (9th Cir. 2013) (en

banc). Because there was ample other evidence presented to the jury that Dale Old

Horn did not believe the direct payments to be in violation of tribal policy, the

defendants cannot show prejudice in the exclusion of the Statement of

Understanding. United States v. Perez, 116 F.3d 840, 847 (9th Cir. 1997) (en

banc).

         AFFIRMED.




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