                            NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                          MAY 18 2016

                            FOR THE NINTH CIRCUIT                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                        No. 14-30231

              Plaintiff - Appellee,              D.C. No. 4:13-cr-00051-BMM-1

 v.
                                                 MEMORANDUM*
FAWN PATRICIA ANN TADIOS,

              Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Brian M. Morris, District Judge, Presiding

                     Argued and Submitted December 8, 2015
                              Seattle, Washington

Before: McKEOWN and TALLMAN, Circuit Judges and GLEASON,** District
Judge.

      Fawn Patricia Ann Tadios, the former CEO of the Rocky Boy’s Health

Board Clinic (the “Clinic”), a federally-funded health care facility located on the

Chippewa Cree’s (the “Tribe”) Rocky Boy Reservation in Montana, appeals her

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
conviction and sentence for: (1) one count of conversion of federal funds in

violation of 18 U.S.C. § 666(a)(1)(A); (2) one count of conversion of section 638

funds in violation of 18 U.S.C. § 1163; and (3) one count of misapplication of

Clinic funds in violation of 18 U.S.C. § 669. We have jurisdiction pursuant to 28

U.S.C. § 1291. We affirm.1

      Tadios first argues that the federal courts lack jurisdiction because Tadios is

an Indian and the acts took place on tribal land. We review criminal jurisdiction de

novo. United States v. Begay, 42 F.3d 486, 497 (9th Cir. 1994). Tadios’s

argument fails in light of more than a century of jurisprudence concluding that

generally applicable provisions of the Federal Criminal Code govern prosecutions

of crimes committed by Indians in Indian territory. See, e.g., United States v.

Kagama, 118 U.S. 375, 384-85 (1886) (finding that federal courts have jurisdiction

over crimes committed by Indians on Indian territory).

      Tadios also argues that the district court erred by admitting evidence of her

husband’s conviction for theft from the Tribe. We review evidentiary rulings for

abuse of discretion and will only reverse if “more probably than not, the lower

court’s error tainted the verdict.” Tennison v. Circus Circus Enters., Inc., 244 F.3d

      1
       We address Tadios’s remaining argument regarding a sentencing
enhancement under U.S.S.G. § 2B1.1 in an opinion filed concurrently with this
disposition. United States v. Tadios, ___ F.3d ____ (9th Cir. 2016).

                                          2
684, 688 (9th Cir. 2001). In the context of this case, the admission of her

husband’s conviction was not prejudicial and his residence at the federal

penitentiary was relevant to Tadios’s argument that she acted in good faith, without

an intent to cheat the Tribe. Cf. United States v. Yazzie, 59 F.3d 807, 811 (9th Cir.

1995) (quoting United States v. Johnson, 820 F.2d 1065, 1069 (9th Cir. 1987))

(Evidence is unfairly prejudicial if it “makes a conviction more likely because it

provokes an emotional response in the jury or otherwise tends to affect adversely

the jury’s attitude toward the defendant wholly apart from its judgment as to his

guilt or innocence of the crime charged.”).

      Even if evidence of the conviction should not have been admitted, any error

was harmless. The challenged testimony was cumulative and offered after the jury

had already heard similar information from other sources. Admissible testimony

thus “overshadowed” anything the challenged testimony added. See United States

v. Vera, 770 F.3d 1232, 1240-41 (9th Cir. 2014).

      Tadios further contends that there is insufficient evidence to support her

conviction, because the Tribe could, and did, authorize her use of clinic funds for

private travel. We review de novo the sufficiency of the evidence. United States v.

Ruiz, 462 F.3d 1082, 1087-88 (9th Cir. 2006). In light of the evidence that Tadios

misrepresented the purposes of her travel to her supervisors and failed to set up


                                           3
payroll deductions to reimburse the Clinic for costs associated with her personal

trips, “the jury could reasonably disbelieve [her] explanations” and find her guilty

of the crimes charged. See United States v. Tucker, 641 F.3d 1110, 1119 (9th Cir.

2011). Thus, the evidence was sufficient for a “rational trier of fact” to find “the

essential elements of the crime beyond a reasonable doubt.” United States v.

Acosta-Sierra, 690 F.3d 1111, 1117 (9th Cir. 2012) (quoting Jackson v. Virginia,

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

      Tadios asserts that the district court erred in failing to provide the jury with a

good-faith instruction. “We review de novo whether jury instructions adequately

cover the defense’s theory of the case.” United States v. Romm, 455 F.3d 990,

1002 (9th Cir. 2006). It is well settled “that a criminal defendant has ‘no right’ to

any good faith instruction when the jury has been adequately instructed with regard

to the intent required.” United States v. Shipsey, 363 F.3d 962, 967 (9th Cir.

2004). Because the district court correctly defined intent, it was not required to

instruct the jury on good faith, and the failure to do so was not error. See id. at

967-68.

      Tadios claims that the district court erred in denying her motions to dismiss

the section 666(a) count, because her conduct fell into section 666(c)’s exception

for bona fide compensation, since she properly obtained approvals for her use of


                                           4
Clinic funds. The denial of a pretrial motion to dismiss an indictment is subject to

de novo review. United States v. Cortes, 757 F.3d 850, 858 (9th Cir. 2014). Even

if the Tribe could authorize Tadios’s use of tribal funds for personal travel,

whether Tadios in fact obtained permission is a question of fact for the jury to

decide. See, e.g., United States v. Williams, 507 F.3d 905, 909 (5th Cir. 2007).

      Finally, Tadios contends that the district court erred in adding sentencing

enhancements for abuse of trust and obstruction of justice. “We review the district

court’s interpretation of the Sentencing Guidelines de novo and its factual findings

for clear error.” United States v. Tanke, 743 F.3d 1296, 1306 (9th Cir. 2014).

Although “[t]here is an intracircuit split as to whether the standard of review for

application of the Guidelines to the facts is de novo or abuse of discretion,” we

need not resolve that split “where, as here, the choice of the standard does not

affect the outcome of the case.” Id. As the chief executive officer of the Clinic,

Tadios enjoyed managerial authority. Her supervisors on the Tribal Council

seemed unaware that she sought approval for out-of-state travel for private

purposes. She was subject to limited supervision and had substantial discretion

over the matters in her arena. Thus, she occupied a position of trust, which

facilitated her crimes. See United States v. Aubrey, 800 F.3d 1115, 1134 (9th Cir.

2015). The district court did not err in adding the abuse of trust enhancement.


                                           5
      The obstruction of justice enhancement applies irrespective of whether

“justice is actually obstructed or impeded.” United States v. Draper, 996 F.2d 982,

986 (9th Cir. 1993). The enhancement is warranted if the conduct at issue “has the

potential for obstructing” the investigation, prosecution, or sentencing of the

instant offense. See United States v. Sullivan, 797 F.3d 623, 642 (9th Cir. 2015)

(quotations omitted); U.S.S.G. § 3C1.1. Here, Tadios took her travel file and

retained it for several months after meeting with a Department of Health and

Human Services investigator. This created the requisite potential for obstructing

the investigation, and the district court did not err in applying the obstruction of

justice enhancement.

      AFFIRMED.




                                           6
