                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
             ___________

             No. 02-2299
             ___________

United States of America,              *
                                       *
                  Appellee,            *
                                       *
      v.                               *
                                       *
Estelle Goings,                        *
                                       *
                  Appellant.           *
                                           Appeals from the United States
             __________                    District Court for the District of
                                           South Dakota.
             No. 02-2301
             __________                           [PUBLISHED]

United States of America,              *
                                       *
                  Appellee,            *
                                       *
      v.                               *
                                       *
Carol Vitalis,                         *
                                       *
                  Appellant.           *
                                  ___________

                             Submitted: December 10, 2002

                                 Filed: December 16, 2002
                                  ___________
Before McMILLIAN, FAGG, and BYE, Circuit Judges.
                            ___________

PER CURIAM.

       Estelle Goings, Carol Vitalis, and Goings’s daugther worked in the payroll
department within the Financial Accounting Office (FAO) of the Oglala Sioux Tribe.
Goings supervised the entire office, and Vitalis supervised Goings’s daughter. The
women obtained multiple payroll advances and failed to repay them as required by
tribal policy. A grand jury found probable cause to believe the women misapplied
tribal funds and converted them to their own use, and thus returned an indictment
charging them with four counts of theft from an Indian tribal organization in violation
of 18 U.S.C. § 1163 and one count of conspiracy to commit theft from an Indian tribal
organization in violation of 18 U.S.C. § 371. A jury convicted all three on all
charges. The district court* sentenced Goings and Vitalis to twenty-seven months in
prison, and Goings’s daughter to fifteen months in prison. Goings and Vitalis appeal
their convictions and sentences. We affirm.

       Goings and Vitalis first contend the district court abused its discretion in
denying their fourth motion for a continuance five days before trial. Goings and
Vitalis stated the tribe auditor had become unavailable to testify because his wife was
scheduled for medical treatment and he was asserting his Fifth Amendment privilege
not to incriminate himself. Goings and Vitalis argued they needed time to obtain a
substitute auditor to give expert testimony. The government responded that the
defense had not given notice that it intended to call the tribe auditor as an expert or
that the defense would call any expert witness at trial. The government also pointed
out the court had earlier ruled irrelevant the documentary evidence identified as the
basis of the auditor’s testimony. In denying the continuance, the district court noted


      *
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.

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the case had been pending nearly one year, numerous continuances had already been
granted, the case did not appear to be especially complicated, and the main trial issue
would be the intent of Goings and Vitalis, a factual decision for the jury. The district
court did not clearly abuse its discretion in denying the continuance. United States
v. Young, 943 F.2d 24, 25 (8th Cir. 1991).

       When it denied the continuance, the district court also denied Goings and
Vitalis’s request that the court appoint an independent accounting expert to replace
the tribe auditor. Goings and Vitalis challenge this denial. The district court
determined the requested expert’s testimony could be covered by other witnesses.
Indeed, Goings and Vitalis elicited the desired testimony on cross-examination of
tribal witnesses who dealt directly with the payroll advance policy and requests. The
district court did not abuse its discretion in declining to appoint an expert because
there was not a reasonable probability that an expert would have aided in the defense,
and the denial of an expert witness did not result in an unfair trial. United States v.
Ross, 210 F.3d 916, 921 (8th Cir.), cert. denied, 531 U.S. 969 (2000).

       Next, Goings argues the district court should have severed her trial from
Vitalis’s trial because Vitalis gave a pretrial written statement to the government
admitting her involvement in taking payroll advances in violation of tribal policy.
The court granted the motion to sever in part by ordering the government to redact
the last paragraph of the statement, which referred to Goings. With the redaction, the
statement did not mention or refer to Goings in any way. After admitting the
shortened statement at trial, the court instructed the jury it could consider the
statement only against Vitalis, and not against the other two defendants. Thus, it does
not matter that the confession might have implicated Goings in light of other evidence
introduced at trial. United States v. Logan, 210 F.3d 820, 821-22 (8th Cir.) (en banc),
cert. denied, 531 U.S. 1053 (2000). The district court did not abuse its discretion in
denying the motion to sever. United States v. Evans, 285 F.3d 664, 670 (8th Cir.
2002).

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       Goings and Vitalis contend the district court erroneously excluded certain
evidence about other employee loans and loan procedures. They first challenge the
district court’s rejection of a written offer of proof concerning government witness
Jackie Rowland, an FAO office manager. Rowland testified she would not have
approved payroll advances for Goings and Vitalis if she had known their earlier
advances had not been repaid. On cross-examination, Rowland testified she always
repaid the full amount of her payroll advances from her next paycheck. Vitalis
submitted a written offer of proof that Rowland’s statement was inaccurate because
Exhibit 106 showed she had received an advance of $748.41 on May 29, 1998, but
she repaid only $148.08 from the next regular paycheck. The district court denied the
offer of proof, stating Rowland’s payroll advances were not in issue.

        We cannot say the district court abused its discretion in refusing the offer of
proof. Federal Rule of Evidence 608(b) gives the district court discretion to allow
cross-examination about specific bad acts that have not resulted in felony convictions
if those acts concern the witness’s credibility, but forbids the introduction of extrinsic
evidence to prove the specific bad act occurred. United States v. Martz, 964 F.2d
787, 789 (8th Cir. 1992). “The introduction of extrinsic evidence to attack credibility,
to the extent it is ever admissible, is subject to the discretion of the trial judge.” Id.
Given Rowland’s specific denial that she had ever failed to repay a payroll advance
in full from her next paycheck, the defendants could not introduce extrinsic evidence
to contradict her. Id. In any event, the district court had admitted Exhibit 106 into
evidence earlier in the trial, so the jury had the contradictory evidence before it.

       Likewise, the district court did not abuse its discretion in denying the
defendants’ offer of proof on Exhibit 104, which showed payroll advance requests
submitted by tribal employees other than Goings and Vitalis. Evidence about other
tribal employees’ requests, especially when it was not shown whether the requested
advances were ever made, was not relevant or material to the issue of whether Goings

                                           -4-
and Vitalis violated the payroll advance policy and gave themselves numerous
unapproved payroll advances. Similarly, the district court did not abuse its discretion
in excluding Exhibit 119, a memorandum written by Vitalis to the tribal treasurer
appealing her employment termination and denying any wrongdoing on her part,
because it was irrelevant and hearsay. See United States v. Esparza, 291 F.3d 1052,
1054 (8th Cir. 2002).

       Goings and Vitalis assert the district court committed error in refusing their
jury instruction on “good faith,” and in giving a willful blindness instruction. The
district court did not abuse its discretion in instructing the jury. United States v.
Willis, 277 F.3d 1026, 1031 (8th Cir. 2002); United States v. Lalley, 257 F.3d 751,
755 (8th Cir. 2001). The instructions, taken as a whole and viewed in light of the
applicable law and trial evidence, fairly and adequately submitted the issues to the
jury. Id. The district court properly gave the Eighth Circuit stock instruction on good
faith instead of the defendants’ longer proposed instruction. See United States v.
Cheatham, 899 F.3d 747, 751-52 (8th Cir. 1990) (approving stock instruction). As for
the willful blindness instruction, Goings and Vitalis contended at trial that they acted
in good faith, did not violate the tribal policy on payroll advances, and were not guilty
of any criminal wrongdoing. The government presented evidence that Goings and
Vitalis told federal agents that they could have checked, but did not want to know
how much money they had taken through payroll advances. Taken in the light most
favorable to the government, the evidence supports an inference that Goings and
Vitalis consciously chose to remain ignorant about the extent of their criminal
behavior. See Willis, 277 F.3d at 1032; Lalley, 257 F.3d at 755. The district court
thus properly gave a willful blindness instruction.

      Last, Goings and Vitalis contend the district court should not have imposed a
two-level enhancement for “abus[ing] a position of public or private trust . . . in a
manner that significantly facilitated the commission or concealment of the offense.”
U.S. Sentencing Guidelines Manual (U.S.S.G.) § 3B1.3 (2001). A position of public

                                          -5-
or private trust is characterized by professional or managerial discretion and involves
less supervision than positions with primarily nondiscretionary responsibilities. Id.
n.1. In imposing the enhancement, the district court properly relied on trial evidence,
which showed Goings and Vitalis held positions of trust in the tribe, they had
significant managerial responsibility, the elected tribal treasurers relied on the
accuracy of the information they provided, and the abuse of trust contributed in a
significant way to facilitating the commission and concealment of the offenses.
United States v. Baker, 200 F.3d 558, 563-64 (8th Cir. 2000).

      We thus affirm the convictions and sentences of Goings and Vitalis.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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