                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 12, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 10-6158
          v.                                           (W.D. Oklahoma)
 VINITA H. SANKEY,                              (D.C. No. 5:08-CR-00294-C-2)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, BRORBY, Senior Judge, and TYMKOVICH, Circuit Judges.



I. Introduction

      Vinita Helen Sankey appeals her conviction of eleven counts of

embezzlement and theft from an Indian tribal organization in violation of 18

U.S.C. § 1163 and her resulting sentence. She argues there was insufficient

evidence to support the convictions, and that the district court erred in calculating

the amount of loss for the purposes of sentencing, including restitution.

Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, this


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
court AFFIRMS the judgment of conviction and AFFIRMS the sentence except

as to restitution. The order of restitution is REVERSED and the matter is

REMANDED for resentencing only as to restitution.

II. Background

      Sankey was jointly tried with her co-defendant and husband, William Blind,

and raises similar issues on appeal. The background facts, including the evidence

introduced at trial, are more fully set forth in this court’s opinion in United States

v. Blind, No. 10-6159. Briefly, Sankey and Blind, elected tribal officials in the

Cheyenne and Arapaho Tribes (“Tribes”), were indicted on conspiracy and

embezzlement charges. Count One of the indictment charged Sankey and her

husband with conspiracy to embezzle tribal monies. Counts Seven through

Fourteen charged Sankey with embezzling tribal funds by engaging in the practice

of negotiating cashier’s checks intended for her district by depositing only a

portion of each check into the district’s account and receiving a portion back in

cash. Counts Fifteen through Seventeen charged Sankey with embezzling tribal

funds by taking advances on tribal gaming revenues intended for her district and

retaining the funds in cash or depositing them into her personal bank account.

Counts Eighteen and Twenty through Twenty-Six charged Sankey with

purchasing various items with tribal funds and failing to return them to the Tribes

or to reimburse the Tribes. These items included automobiles, a riding lawn

mower, computer equipment, and portable storage buildings.

                                          -2-
      The jury convicted Sankey on all counts in the indictment. A Presentence

Report (“PSR”) was prepared and it calculated the amount of loss attributed to

Sankey’s conduct as $230,086.82. Sankey objected to some of the items included

in that total and the district court addressed the objections at the sentencing

hearing. The court overruled some of Sankey’s objections and sustained others,

ultimately reducing the loss amount for guidelines calculation purposes to

$218,387.82. Based on this amount, Sankey’s base offense level of six was

increased by twelve levels. See USSG § 2B1.1(b)(1)(G). Her total offense level

of eighteen and criminal history Category I resulted in an advisory guidelines

range of thirty-three to forty-one months. The court sentenced her to forty-one

months’ imprisonment, the high end of the range. The court also ordered Sankey

to pay $193,792.82 in restitution. On appeal, Sankey challenges the sufficiency

of the evidence supporting her convictions on Counts Seven through Seventeen.

She also challenges the district court’s calculation of the loss amounts used to

determine her offense level and restitution.

III. Discussion

      A. Sufficiency of the Evidence

      Sankey did not move for a judgment of acquittal at the close of evidence on

any of the counts she now challenges. Accordingly, plain error review applies to

Sankey’s claims of insufficient evidence in this appeal. See United States v.

Goode, 483 F.3d 676, 681 (10th Cir. 2007). Under this standard, Sankey has the

                                          -3-
burden to show error, that is plain, that affects her substantial rights, and that

seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id. A conviction on a count for which there was insufficient

evidence will generally meet the four-prong plain error test. See id. at 681 n.1

(en banc) (“[A] conviction in the absence of sufficient evidence of guilt is plainly

an error, clearly prejudiced the defendant, and almost always creates manifest

injustice.”). In reviewing whether evidence was sufficient to support a

conviction, this court examines whether a rational jury “could have found the

defendant guilty beyond a reasonable doubt,” viewing the evidence and all

reasonable inferences therefrom in the light most favorable to the government.

United States v. Flanders, 491 F.3d 1197, 1207 (10th Cir. 2007).

             1. Cashier’s Checks

      Sankey first challenges her convictions on Counts Seven through Fourteen,

which charged her with embezzling money from the Tribes by retaining cash

totaling $57,154.11, representing portions of negotiated cashier’s checks intended

for her district. Sankey argues the government failed to present any evidence that

the cash she received was used for anything other than lawful tribal expenditures.

      To prove the allegations in these counts, the government presented bank

records of the cashier’s check transactions. As to Count Seven, the records

showed Sankey cashed two cashier’s checks payable to “Arapaho District 1 VS”

and “Cheyenne-Arapaho Tribes” totaling $82,409.51. Of that, certain sums were

                                           -4-
deposited into her district and payroll accounts, $5,000.00 was deposited into an

account for the Barefoot Pow-Wow, and the remainder was used to get a new

cashier’s check payable to Wal-Mart. In addition, Sankey received $2,500.00 in

cash from the checks. As to Count Eight, bank records showed Sankey cashed

another cashier’s check, also payable to “Arapaho District 1 VS” in the amount of

$62,174.00. In exchange, Sankey received a new cashier’s check for $22,174.00

and $20,000.00 in cash, and deposited the remainder into her district’s payroll

account. As to Count Nine, Sankey again cashed a cashier’s check payable to her

district, this one for $72,777.75, with which she purchased a new cashier’s check

for $54,977.75 and took $17,800.00 in cash. As to Count Ten, the records

showed Sankey negotiated another cashier’s check for her district in the amount

of $12,727.69, receiving a check payable to the Western Inn Motel for $3,294.00,

a new cashier’s check for $6,423.69, and $3,000.00 in cash. As to Count Eleven,

she negotiated a cashier’s check for $6,423.69 intended for her district by

depositing $4,023.69 into her district’s payroll account and receiving $2,400.00 in

cash.

        Count Twelve is the first involving a series of transactions with related

cashier’s checks. As to this count, Sankey negotiated a cashier’s check for

$17,968.89 for her district, receiving a new cashier’s check for $15,507.89, three

smaller checks totaling $450.00, and $2,000.00 in cash. As to Count Thirteen,

Sankey cashed that new cashier’s check for $15,507.89, buying a new cashier’s

                                           -5-
check for $13,935.02 and several small miscellaneous checks. Several days later,

she negotiated the new $13,935.02 check and used it to purchase seventeen

miscellaneous checks, a new cashier’s check payable to the district in the amount

of $5,454.11, and $4,000.00 in cash. Finally, as to Count Fourteen, the records

showed Sankey took the entire amount of the $5,454.11 check in cash. As to each

count, Sankey was convicted of embezzling the amount she received in cash. The

government did not present any direct evidence of how Sankey spent the cash she

retained from these transactions.

      Sankey argues the government’s case was supported only by inference piled

upon inference, because no evidence directly showed how the cash was used.

Specifically, she contends there was no evidence of any particular extravagant

purchases or expenditures on personal items with the cash. She further asserts

she was authorized to cash the checks on behalf of her district. Thus, although

the evidence showed she received cash, there was no evidence she

misappropriated that cash. Further, she points to evidence cash was often used by

her district for a variety of legitimate tribal functions, partly because local

vendors would no longer take tribal checks. The jury heard testimony that

Emergency Assistance (“EA”) funds were sometimes given to members of the

Tribes in the form of cash or Wal-Mart gift cards so the member would not have

to go to the casino to cash a check. Other witnesses testified Sankey’s district

used cash to pay general office expenses but did a poor job of record-keeping.

                                           -6-
      Sankey’s sufficiency-of-the-evidence argument fails for the same reasons

as did her co-defendant’s nearly identical arguments, explained in this court’s

opinion in United States v. Blind, No. 10-6159. As this court noted,

circumstantial evidence is sufficient to sustain a conviction. United States v.

Davila, 693 F.2d 1006, 1007 (10th Cir. 1982). The very same types of

circumstantial evidence support Sankey’s convictions on these counts as support

Blind’s convictions stemming from similar cashier’s check transactions. Strong

circumstantial evidence of embezzlement of the cash was presented to the jury,

including the unusual nature of the transactions, the structuring of transactions in

an inherently untraceable way, and the circumvention of various policies of the

Tribes designed to track funds and prevent misappropriation. See United States v.

Baldridge, 559 F.3d 1126, 1141 (10th Cir. 2009) (explaining that unusual nature

of transactions designed to avoid detection can provide evidence of illegal intent).

Like Blind, Sankey maintained an account for district business and used that

account for some tribal purposes. Her failure to use the district account for other

transactions, particularly those in which she received untraceable cash, permitted

the jury to find the cash involved in those transactions were embezzled for

personal use. There is additional evidence of Sankey’s misappropriation. A

portion of the money from the cashier’s checks was deposited into an account for

the Barefoot Pow-Wow, an event no longer being held. Evidence showed Sankey

withdrew cash from the Barefoot Pow-Wow account on various occasions and

                                         -7-
used it to pay off her personal loans. The jury could properly consider evidence

of Sankey’s misuse of the Barefoot Pow-Wow account, into which she deposited

funds from the cashier’s checks, to support an inference that the cash she retained

from the same cashier’s checks was embezzled.

      Sankey’s arguments that the cash was used legitimately because her district

distributed EA funds and conducted other office business in cash fail for the same

reasons as did Blind’s similar arguments. The jury heard ample evidence the EA

program guidelines were routinely disregarded in Sankey’s district and EA funds

were misappropriated. Accordingly, the jury was not compelled to conclude

Sankey’s use of the cash was legitimate. Finally, Sankey’s argument that she was

entitled to cash the checks as the Business Committee member representing her

district misses the mark. As explained in Davila, “because the crime of

embezzlement presupposes lawful possession, circumstantial evidence is often the

only indicium of . . . intent to convert.” 693 F.2d at 1007. Here, the jury could

permissibly infer from the evidence presented that Sankey embezzled the cash.

That conclusion required the jury to draw only one inference—that the cash was

not spent legally—not, as Sankey contends, to pile inference upon inference.

Accordingly, there was no error, much less reversible error under the plain error

standard.

             2. Gaming Advances




                                         -8-
      Sankey next challenges the sufficiency of the evidence supporting her

convictions on Counts Fifteen through Seventeen, which charged her with

embezzling advances she took from tribal gaming revenues, totaling $8,000.00.

These transactions involved money from a tribal account held by the Tax

Commission, the central financial agency of the Tribes. Sankey and Blind had

access to this account because of their membership on the Business Committee.

To prove these allegations, the government introduced Tax Commission records

of check transactions and the testimony of a Tax Commission employee. Sankey

argues the government failed to prove the advances were not repaid. She

contends the single witness who testified about the advances stated there was no

way to know how the money was spent and admitted the Tax Commission’s

records were in disarray.

      The evidence as to Sankey’s conversion of the gaming advances is

sufficient to sustain her convictions on these counts. The Tax Commission

employee testified Sankey regularly took “advances” on the revenues she

expected to receive from gaming profits for her district, promising to repay those

advances in the future. The employee also testified that despite efforts by the

Commission to locate documentation of repayment, there was no evidence the

money was ever repaid. The employee also authenticated the Tax Commission

records. As to Count Fifteen, records showed a check was drawn on the Tax

Commission account in the amount of $2,500.00 made out to “Vinita Sankey.”

                                         -9-
Blind and Sankey signed the check on behalf of the Tax Commission. As to

Count Sixteen, records showed an identically addressed check, again signed by

Blind and Sankey, in the amount of $3,000.00. Records showed Sankey later

deposited that $3,000.00 check into her personal checking account. As to Count

Seventeen, records showed a third identically addressed check, again signed by

Blind and Sankey, in the amount of $2,500.00. Records also showed this check

was later negotiated at a bank, with Sankey depositing $2,000.00 into her

personal checking account and taking $500.00 in cash.

      The aberrant nature of Sankey’s conduct is apparent on its face. Sankey

was writing checks to herself out of the Tax Commission’s account. Moreover,

the money was not deposited in her district’s account, but rather taken in cash or

deposited directly into Sankey’s personal bank account. The extreme irregularity

of Sankey’s conduct alone is enough to support the jury’s finding that she

embezzled the cash. The Tax Commission employee’s testimony that an

exhaustive search for records produced no evidence of repayment only bolstered

the government’s case. In short, as with the cashier’s checks, the government did

not have to prove exactly how Sankey spent the money. See Davila, 693 F.2d at

1007. Rather, it only had to introduce sufficient evidence to allow a jury to find

the money was converted to Sankey’s personal use. It clearly did so here.

      B.     Sankey’s Sentence and Restitution Order




                                        -10-
      Sankey next challenges her sentence as procedurally unreasonable, arguing

the district court erred in calculating the total amount of loss, $218,387.82, used

to set her offense level under the sentencing guidelines. She further argues the

district court erred in calculating the $193,792.82 amount of restitution she was

ordered to pay.

             1. Cashier’s Checks and Gaming Advances

      Sankey first argues the district court erred by including losses from the

cashier’s check scheme and the gaming advances, described above, in the

guidelines and restitution loss calculations. At sentencing, Sankey objected to the

inclusion of these amounts on the basis that the government introduced

insufficient evidence to prove the amounts. Her objection was essentially the

same as her sufficiency-of-the-evidence argument as to those counts, i.e., the

government never showed at trial how the cash was spent and some evidence

showed legitimate district business was conducted with cash. Sankey now argues

the district court’s factual findings as to these losses were inadequate under Fed.

R. Crim. P. 32(i)(3)(B) and that there was insufficient evidence to prove the loss

amount for sentencing purposes, rendering the district court’s inclusion of these

losses clearly erroneous.

      Although Sankey objected to these loss amounts as stated in the PSR, she

never objected to the adequacy of the district court’s factual findings at the

sentencing hearing. Accordingly, the adequacy of the factual findings is reviewed

                                         -11-
for plain error. See United States v. Cook, 550 F.3d 1292, 1297-98 (10th Cir.

2008). Sankey cannot show the district court plainly erred. The loss amounts of

which she complains were directly based on the amounts Sankey was convicted of

embezzling in Counts Seven through Seventeen. In response to Sankey’s

objections to the loss amounts, the district court overruled the objections,

explaining they were “precluded by the jury’s verdict.” Because Sankey’s

objections at sentencing to these loss amounts in essence attacked the sufficiency

of the evidence supporting her convictions of embezzling those amounts, the

district court’s explanation that the jury’s verdict established the loss amounts

was an adequate explanation.

      Sankey’s argument that the factual findings themselves were clearly

erroneous also fails. Factual findings of loss, when preserved by timely objection

below, are reviewed for clear error. United States v. Mullins, 613 F.3d 1273,

1292 (10th Cir. 2010) (relating to guidelines calculations); United States v.

James, 564 F.3d 1237, 1243 (10th Cir. 2009) (relating to restitution). Sankey’s

argument on appeal is again limited to her assertion the government did not

present any evidence of how she spent the cash she received from the various

transactions, and thus the evidence was insufficient to support the loss amounts

found by the district court. As explained above, however, the government

presented sufficient evidence at trial to support her convictions on Counts Seven

through Seventeen, including the actual bank records from which it was shown

                                         -12-
Sankey received cash payments and the amounts of those payments. Accordingly,

the district court’s findings at sentencing, which were applied both to the amount

of loss used to calculate Sankey’s advisory guidelines range and to the calculation

of restitution, are not clearly erroneous.

             2. Travel Reimbursements

      Next, Sankey challenges the inclusion of $11,635.46 in her total loss

amount attributed to improper travel reimbursements from four separate trips. 1

The government argues Sankey failed to object to these loss amounts below and

thus did not preserve the issue for appeal. The government admits, however, that

these loss amounts were erroneously included because the government did not

present evidence to support them.

      Even assuming Sankey properly objected below, any error is harmless as to

the calculation of her advisory guidelines range. See United States v. Wilken, 498

F.3d 1160, 1169 (10th Cir. 2007). The district court found Sankey’s total loss

amount to be $218,387.82; under the guidelines, the same increase in offense

level applies to loss amounts between $200,000 and $400,000. See USSG §

2B1.1(b)(1). If Sankey’s loss amount is reduced by the $11,635.46 of erroneously

included travel reimbursements, her total loss amount would be $206,752.36, still



      1
      The travel reimbursements were listed as pertaining to the National Indian
Education Conference, the Bingo World Conference, the National Congress of
American Indians, and the Global Gaming Expo.

                                             -13-
above the $200,000 cutoff. The error thus did not affect the calculation of

Sankey’s advisory guidelines range.

      Based on the same travel reimbursement allegations, however, the district

court ordered Sankey to pay the same amount in restitution. Under the Mandatory

Victims Restitution Act, a restitution order that the government concedes exceeds

the loss caused by the defendant is an illegal sentence constituting plain error.

James, 564 F.3d at 1243; United States v. Smith, 156 F.3d 1046, 1056 (10th Cir.

1998). Thus, even if Sankey did not preserve her objection to the restitution

amount, as the government argues, the inclusion of that amount is plain error

because the government concedes it was not supported by any evidence. See

Smith, 156 F.3d at 1056 (vacating under plain error standard restitution amount as

to which government admits it did not present evidence below). Accordingly, the

restitution order is reversed as to the $11,635.46 pertaining to the four identified

travel reimbursements.

IV. Conclusion

      For the forgoing reasons, Sankey’s convictions are AFFIRMED, her

sentence is AFFIRMED except as to restitution, and the restitution order is

REVERSED. The matter is REMANDED for resentencing as to restitution only.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge

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