                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

      ___________

      No. 05-3446
      ___________

United States of America,               *
                                        *
            Plaintiff - Appellee,       *
                                        *
      v.                                *
                                        *
Marcia Brave Thunder,                   *
also known as Marcia Bailey,            *
                                        * Appeals from the United States
            Defendant - Appellant.      * District Court for the District of
                                        * North Dakota.
      ___________                       *

      No. 05-3447
      ___________

United States of America,               *
                                        *
             Plaintiff - Appellee,      *
                                        *
      v.                                *
                                        *
Rinissa Fitzpatrick,                    *
                                        *
             Defendant - Appellant      *
                                   ___________

                             Submitted: April 19, 2006
                                Filed: April 24, 2006
                                 ___________
Before MURPHY, MELLOY, and GRUENDER, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       A jury convicted Marcia Brave Thunder, a/k/a Marcia Bailey, and Rinissa
Fitzpatrick of theft from an Indian tribal organization, conspiracy to commit an
offense against the United States, and making false statements to the Federal Bureau
of Investigation (FBI). The district court1 sentenced Brave Thunder to 15 months and
Fitzpatrick to 21 months and ordered restitution from both. Brave Thunder and
Fitzpatrick appeal, challenging the sufficiency of the evidence and their sentences.
We affirm.

       A federal grand jury indicted Brave Thunder and Fitzpatrick on one count of
theft from the Long Soldier District of the Standing Rock Sioux Tribe, in violation
of 18 U.S.C. §§ 1163 and 2, conspiracy to commit offenses against the United States
by stealing and misapplying funds belonging to the Tribe, in violation of 18 U.S.C.
§ 371, and making false statements to the FBI about tribal consultant agreements and
their own consultant status, in violation of 18 U.S.C. § 1001.

       At trial the government introduced evidence that Brave Thunder and Fitzpatrick
held several elected positions in the Long Soldier District of the Standing Rock Sioux
Tribe. During the time period relevant to these appeals, Fitzpatrick, who had been
elected secretary for the District, served as interim treasurer because the elected
treasurer had resigned. Brave Thunder served as a member of the Business
Committee, a subcommittee of the Planning Commission.




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

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       When Cheryl Penny was appointed treasurer in May 2003, she sought to obtain
the District's financial records from Fitzpatrick but learned that the records had been
delivered by Fitzpatrick and Brave Thunder's mother to a certified public accountant,
Paul East, for a review ordered by the District. After an investigation was initiated
against District officers, the records were turned over to FBI Special Agent Hal
Stutsman who reviewed them with Penny. Stutsman and Penny discovered a number
of consultant agreements which had been executed in 2002 authorizing payment by
the District of thousands of dollars to Brave Thunder and Fitzpatrick. They also found
files containing consultant offer letters for Brave Thunder and Fitzpatrick, consultant
agreements, returned checks, and worksheets tracking the consultant payments. Tribal
law prohibited elected officials from entering into contracts with the District, and
consulting agreements needed approval from the District Council and the Tribal
Council. None of the consulting agreements had gotten such approval.

      Stutsman created a summary of the checks issued pursuant to the consulting
agreements to Fitzpatrick and Brave Thunder between September 1, 2002 and March
31, 2003, showing payments of $71,000 to Fitzpatrick and $40,100 to Brave Thunder.
Stutsman tracked $32,100 of the consulting money paid to Fitzpatrick and $23,900 of
that paid to Brave Thunder to their respective bank accounts. Stutsman noted
discrepancies between the District Planning Commission minutes which had been
delivered to Paul East and the official versions filed with the Tribal Council. Only the
unofficial minutes contained motions for the approval of consultant agreements for
Brave Thunder and Fitzpatrick; the Planning Commission members shown as having
made the motions denied it.

      When Stutsman confronted Brave Thunder and Fitzpatrick, Brave Thunder said
she had not signed a consultant agreement and did not recall being paid pursuant to
one. Fitzpatrick said she had not been hired as a consultant and claimed not to have
seen any consultant agreements. Stutsman had exemplars of the handwriting of Brave
Thunder and Fitzpatrick reviewed by a trained handwriting examiner. The examiner

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opined that it was "highly probable" that Brave Thunder's signatures on the consultant
agreement and the exemplars were authored by the same person and stated without
reservation that the Fitzpatrick signatures on the agreement and the exemplars had
been written by the same individual.

       The jury convicted Brave Thunder and Fitzpatrick on all three counts. At
sentencing the district court imposed two level enhancements under U.S.S.G. § 3B1.3
for both defendants based on their abuse of positions of trust. The court noted that
Fitzpatrick was an elected official who had served as a member of the Board and
Planning Commission, had authority to sign checks, and had signed both the checks
and consulting agreements at issue. It also observed that Brave Thunder was a
member of the Business Committee, bore responsibility for planning and
recommending approval of expenditure of funds, and executed the false consulting
agreements. The court also found that an 8 level increase to Fitzpatrick's offense level
was warranted under U.S.S.G. § 2B1.1(b)(1)(E) because the loss from her offenses
exceeded $70,000. The court sentenced Fitzpatrick to 21 months and $72,000
restitution and Brave Thunder to 15 months and $40,100 restitution. On appeal both
challenge their sentencing enhancements as well as the sufficiency of the evidence
underlying their convictions.

       A guilty verdict will only be overturned if no reasonable jury could have found
the defendant guilty beyond a reasonable doubt. United States v. Gjerde, 110 F.3d
595, 599 (8th Cir. 1997). Brave Thunder alleges that there was insufficient evidence
that she deposited consultant funds from the District and argues that she did not
violate 18 U.S.C. § 1163 because she did not have access to funds or supervisory
authority over them. Fitzpatrick alleges that there was insufficient evidence for her
theft conviction because the government only demonstrated bad recordkeeping rather
than proving that the disbursed money had been stolen or misapplied. The
government introduced a large amount of evidence of signed consulting agreements,
consulting payments, falsified meeting minutes, and handwriting analysis, which

                                          -4-
provided an adequate basis for the jury findings that Fitzpatrick and Brave Thunder
were guilty of theft. Fitzpatrick and Brave Thunder's alternative interpretations of the
evidence – asserting, for example, that others could have altered the documents and
that there was no proof that Brave Thunder deposited money from consulting
agreements – cannot overcome the factual findings reached by the jury.

       Brave Thunder and Fitzpatrick both allege that their conspiracy convictions
cannot stand because there was no evidence that there was a conspiracy involving the
United States. This argument is based on a misreading of the statute and of the
indictment: 18 U.S.C. § 371 prohibits not only a conspiracy to defraud the United
States, but also a conspiracy to commit any offense against the United States. See 18
U.S.C. § 371. Since the indictment charged the latter – a conspiracy to violate 18
U.S.C. § 1163 – the government was only required to introduce evidence of a
conspiracy to commit theft.

       Brave Thunder and Fitzpatrick also challenge their convictions for making false
statements about the consultant arrangements. Brave Thunder alleges that the
government did not prove that her statements about not recalling the consultant
agreements or not having been paid as a consultant were false, especially since the
agreements had not been approved by the necessary parties. Fitzpatrick claims that
if she had said she was hired as a consultant, the statement would have incriminated
her and would have been false. She also alleges that there was no proof that she did
remember any agreement at the time of her interview. None of these arguments has
merit. Brave Thunder and Fitzpatrick were paid for consultant work, the jury could
infer they had seen the consultant agreements because they signed them, and there is
no constitutional right to provide a false answer. See Brogan v. United States, 522
U.S. 398 (1998) ("invocation of the Fifth Amendment privilege...allows a witness to
remain silent, but not to swear falsely") (internal quotation omitted).




                                          -5-
       Finally, Brave Thunder and Fitzpatrick challenge the district court's sentencing
enhancements for abuse of positions of trust and Fitzpatrick appeals the increase in
her offense level based on the amount of loss. We review the district court's
interpretation and application of the sentencing guidelines do novo and its factual
findings for clear error. United States v. Jourdain, 433 F.3d 652, 658 (8th Cir. 2006).
Brave Thunder alleges that she had no discretionary authority so her situation did not
fit within the guideline commentary description of a position of trust. See U.S.S.G.
§ 3B1.3, comment, n.1. Fitzpatrick claims that the district court erred by making
findings about the amount of loss and her abuse of a position of trust because these
issues should have been for the jury and that she was no more culpable than Brave
Thunder and a codefendant who had been acquitted. Under United States v. Booker,
543 U.S. 220 (2005), judicial factfinding is permissible at sentencing so long as the
district court understands that the sentencing guidelines are advisory only. See United
States v. Morell, 429 F.3d 1161, 1164 (8th Cir. 2005). After studying the record, we
conclude that the district court thoroughly discussed the factors that marked Brave
Thunder and Fitzpatrick as holding positions of trust and did not err by imposing
enhancements or increasing Fitzpatrick's offense level based on the amount of loss.

      Accordingly, we affirm the judgments of the district court.

                               ___________________




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