                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3639
                                   ___________

United States of America,            *
                                     *
            Plaintiff–Appellee,      *
                                     * Appeal from the United States
      v.                             * District Court for the District
                                     * of North Dakota.
Alisha Rae Parisien,                 *
                                     *
            Defendant–Appellant.     *
                                ___________

                             Submitted: May 11, 2005
                                Filed: June 30, 2005
                                 ___________

Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.
                           ___________

BYE, Circuit Judge.

       A jury convicted Alisha Rae Parisien of felony larceny under 18 U.S.C. § 661
for embezzling more than $1,000 from her employer over the course of eight months.
Parisien appeals, arguing because she never stole more than $1,000 on any given
occasion, all she committed was a series of misdemeanors and it was improper for the
district court1 to allow the jury to aggregate the embezzled amounts to convict her of
a felony. We affirm.


      1
       The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.
                                           I

      Parisien worked as a cashier at Jollie’s Super Market in Belcourt, North
Dakota. Parisien began embezzling money from her till because of a gambling habit,
which sometimes left her unable to pay for necessities. Initially, Parisien took small
amounts on limited occasions (for example, the first time she embezzled enough to
buy diapers for her child). The thefts, however, eventually increased both in
frequency and magnitude not only to replace money she had gambled away but also
to provide additional money for further gambling. Towards the end of her
employment, Parisien committed ten fraudulent transactions totaling $1,663 in a five-
day period. At trial, the government submitted evidence showing the total embezzled
over eight months equaled approximately $13,000. The evidence also showed,
however, Parisien never took more than $1,000 on a single occasion.

       Parisien accomplished the embezzlement by manipulating three different types
of transactions. The first type of transaction is a return transaction. In a return
transaction, a cashier would refund money to a customer when a product was returned
following a completed purchase. Parisien improperly obtained a manager’s secret
code, which allowed her to generate a return transaction without an actual return.
Parisien would generate false customer returns and take money from the till without
replacing the products to their respective departments.

       The second type of transaction is known as an “error correct” or a void. An
error correct occurs when a customer is checking out from the grocery store and
changes his or her mind about purchasing one item out of several while at the check-
out. Using an error correct, the cashier is able to remove the relevant item from the
customer’s bill prior to totaling it up. Parisien would key a high-priced item into her
till without an actual product and then void the transaction with an error correct,
pocketing cash equal to the value of the error correct.



                                         -2-
       The third type involved ATM transactions. A customer wishing to withdraw
cash from the ATM located on the premises would only receive a receipt instead of
cash. The customer would have to bring the receipt to the cashier to receive the
actual money. The receipts were then used in lieu of cash for calculating transactions
when closing out the till after each shift. Parisien keyed ATM transactions into her
register and removed money from her till without a receipt. Parisien used this type
of transaction to obtain the majority of the funds she embezzled.

       In February 2003, Jollie’s discovered through an audit process that ATM
transactions had been occurring at Parisien’s till without ATM tickets accounting for
the funds given. Jollie’s also reviewed statements received from Port Enterprises, the
company that facilitated the ATM, which also showed discrepancies between the
ATM transactions keyed in Parisien’s till and the actual receipts generated by the
ATM.

       On January 14, 2004, a federal grand jury indicted Parisien on one count of
felony larceny in violation of 18 U.S.C. § 661.2 Section 661 sets forth a felony charge
for individuals who take another's property if the value exceeds $1,000. If the value
of property is less than $1,000, the individual would instead be charged with a
misdemeanor. At trial, one of the issues was whether the loss amount from each of
Parisien’s individual fraudulent transactions – all of which were less than $1,000 –
could be aggregated to reach the level necessary to support the felony charge. The
district court instructed the jury that in order to determine Parisien committed a
felony, the jury must find Parisien stole more than $1,000 during a continuing course
of conduct, meaning at some point Parisien formed an intent to steal money on a
continual basis and thereafter stole in excess of $1,000. This determination would


      2
       Parisien is an enrolled member of the Turtle Mountain Band of Chippewa, and
Belcourt is located in Indian Country, giving the federal courts jurisdiction over this
offense. See 18 U.S.C. § 1153.

                                         -3-
allow the jury to convict Parisien of a felony, rather than individual misdemeanors for
each incident. The jury found Parisien guilty of felony larceny. Parisien filed a
timely appeal, claiming the evidence was insufficient to support a felony conviction.
Furthermore, Parisien claimed federal authorities lacked authority to prosecute her
for misdemeanor conduct.

                                           II

       “We review the sufficiency of the evidence to sustain a conviction de novo.”
United States v. Rodriguez-Mendez, 336 F.3d 692, 695 (8th Cir. 2003). The evidence
is reviewed in the light most favorable to the verdict and all reasonable inferences are
accepted as established. United States v. Kamerud, 326 F.3d 1008, 1012 (8th Cir.
2003). The verdict must be affirmed “unless no reasonable jury would have found
each essential element of the crime beyond a reasonable doubt.” United States v.
Morin, 338 F.3d 838, 844 (8th Cir. 2003).

       “Generally, the question whether a series of takings constitutes one or more
than one offense . . . must turn on the factual circumstances of each case.” United
States v. Billingslea, 603 F.2d 515, 520 (5th Cir. 1979). A series of offenses can be
aggregated into one offense when they are composed of a “formulation of a plan or
scheme or the setting up of a mechanism which, when put into operation, will result
in the taking or diversion of sums of money on a recurring basis.” Id. Acts forming
an integral part of the first taking which facilitate subsequent takings, or acts taken
in preparation of several takings which facilitate subsequent takings, are relevant to
determine the party’s intent to commit a continuing crime. A party’s intent is also
illustrated by the “temporal and geographical proximity of the several takings.” Id.
Thus, when all acts result from a continuing course of conduct, they may be
aggregated into one crime.




                                          -4-
       Like the Fifth Circuit in Billingslea, other jurisdictions also allow for
aggregation of a series of takings if they occur within a continuing course of conduct.
See United States v. Smith, 373 F.3d 561, 564 (4th Cir. 2004) (ruling aggregation can
be applied where the defendant’s act “evidences the intent to establish a mechanism
for the automatic and continuous receipt of funds for an indefinite period”); United
States v. Papia, 910 F.2d 1357, 1364-65 (7th Cir. 1990) (adopting the aggregate
approach articulated in Billingslea).

       The district court instructed the jury it could find Parisien “engaged in a
continuing course of conduct if at some point during the time frame alleged in the
Indictment, she intended or planned to steal money on a continual basis, and
thereafter stole more than $1,000.” Gov’t App. at 1. Parisien contends the district
court should have focused the jury’s attention only on her intent at the time of the first
taking. We disagree.

       In determining an intent to steal money on a continual basis, the jury was free
to consider not only Parisien’s state of mind at the initial taking, Billingslea, 603 F.2d
at 520 (“Of critical importance is the state of mind or intent of the actor prior to and
simultaneously with the first taking.”), but also subsequent acts she performed which
may have facilitated further takings, id. (“Closely related, and of equal importance,
is evidence of acts done by the accused . . . in preparation for . . . several takings . .
. which facilitate the subsequent takings or in some way aid the defendant in
accomplishing them.”). Here, there was evidence Parisien took preparatory acts
which facilitated subsequent takings. For example, Parisien admitted she
inappropriately obtained a manager’s secret code which she used on several occasions
to perform false return transactions. Moreover, the jury could consider the temporal
proximity of the takings in determining Parisien’s intent. Id. While in the beginning
Parisien’s thefts were in small amounts and sporadic, towards the end of the
embezzlement period Parisien’s thefts were more frequent and much larger.
Parisien’s takings became so frequent that, at one point, she took over $1,000 in one

                                           -5-
week. Parisien admitted to an investigator she engaged in the takings whenever she
could without getting caught. She testified she started taking small amounts, but then
got “greedy.” The district court properly instructed the jury Parisien was guilty of a
felony offense if – at some point during the relevant time period – she formed the
intent to steal on a continual basis and thereafter stole in excess of $1,000, even if that
was not her original intent.

       Parisien also contends there was insufficient evidence to show she formed an
intent to steal over $1,000 because she is a pathological gambler. Parisien had an
expert testify at trial she was a pathological gambler. Parisien’s theory was that she
did not form the intent to steal on a continual basis because each time she gambled
she believed she would win big and, as a result, no longer need to steal from Jollie’s.
The jury was, however, free to disregard Parisien’s theory. United States v. Ervasti,
201 F.3d 1029, 1037 (8th Cir. 2000). “Intent is an issue that turns in large part on the
credibility and demeanor of witnesses, and is peculiarly within the province of the
jury.” United States v. Erdman, 953 F.2d 387, 391 (8th Cir. 1992) (quoting United
States v. Long, 952 F.2d 1520, 1525 (8th Cir. 1991)).

                                            III

       The evidence was sufficient to support the jury’s conclusion Parisien – at some
point during the time period alleged in the indictment – formed an intent to steal on
a continual basis and thereafter stole more than $1,000. Therefore, we affirm.3
                         ___________________________




      3
       Because we affirm Parisien’s felony conviction, her challenge to the district
court’s jurisdiction over her alleged misdemeanor conduct is no longer at issue and
thus will not be addressed.

                                           -6-
