                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 March 19, 2009
                     UNITED STATES COURT OF APPEALS
                                                              Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                 Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 08-6111
                                               (D.C. No. 5:07-CR-00049-C-1)
    RENEE ISLAND,                                      (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before McCONNELL, McKAY, and GORSUCH, Circuit Judges.



         Renee Island appeals from her conviction for conspiracy and

embezzlement. On appeal, she argues that because the jury found her guilty

of misdemeanor embezzlement, her conviction for felony conspiracy should be

vacated and reentered as a misdemeanor, and in any event, the evidence




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
was insufficient to support the verdicts. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

                                    Background

      The Cheyenne and Arapaho Indian Tribes of Oklahoma (Tribes), are a

federally recognized Indian Tribal Government headquartered in Concho,

Oklahoma. The Tribes, which are governed by a business committee consisting

of eight elected officials from six districts, opened the Lucky Star Casinos in the

1990s. Federal law prohibits the distribution of net tribal gaming revenues for

any purposes other than those set forth by statute. 25 U.S.C. § 2710(b)(2)(B).

      In 2001, Ms. Island was hired as a secretary/assistant by Robert Tabor, the

chairman of the business committee and elected representative of Arapaho

District A-2. Initially, the committee used a single checking account for net

gaming proceeds from which any of the eight members could write checks.

Later, the committee implemented a system by which its treasurer and Cheyenne

District C-4 representative, Eddie Whiteskunk, would divide the proceeds among

individual committee members, including himself and Mr. Tabor.

      Beginning in 2002, Ms. Island worked exclusively for Messrs. Whiteskunk

and Tabor and ran their offices on a daily basis. Part of her duties included

writing checks from their respective gaming proceeds checking accounts to tribal

members who needed financial assistance – authorized expenditures under

§ 2710(b)(2)(B). During this same time and on trips to Las Vegas, Nevada,

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and Albuquerque, New Mexico, Ms. Island obtained money from those checking

accounts (wire transfers) for her and others’ personal use, which formed the basis

of her ensuing indictment for conspiracy and embezzlement. The evidence was

that she obtained more than $15,000 that was later divided among the

participants. Following a two-day trial, the jury found her guilty of five counts of

embezzlement of less than $1,000 under 18 U.S.C. § 1163, and one count of

conspiracy to commit an offense against the United States under 18 U.S.C. § 371. 1

                            Sufficiency of the Evidence

      We address first Ms. Island’s argument that the government failed to

produce sufficient evidence to support her convictions.

      The standard of review makes it difficult to prevail on a sufficiency
      of the evidence claim[,] . . . [because] [a]lthough we review the trial
      record de novo, we do not reverse if, after viewing the evidence in
      the light most favorable to the prosecution, any rational trier of fact
      could have found the essential elements of the crime beyond a
      reasonable doubt.

United States v. McPhilomy, 270 F.3d 1302, 1307 (10th Cir. 2001) (internal

citation and quotation marks omitted). “In so doing, we resolve any possible

conflicts in the evidence in favor of the government and assume that the jury

found that evidence credible.” United States v. Doddles, 539 F.3d 1291, 1293-94

(10th Cir. 2008).



1
       Ms. Island neither testified nor called any witnesses at trial. She did move
for a judgment of acquittal on all counts at the end of the government’s case.

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      Ms. Island’s argument with respect to the conspiracy charge is that there

was no agreement; instead, “[s]he just did what she was told, by those who

had authority over her job and over the money.” Aplt. Br. at 22. She compares

her conduct to that of the defendant in United States v. Butler, 494 F.2d 1246

(10th Cir. 1974). The facts are strikingly different. Mr. Butler was an airman

who served under Sergeant Greene. Sergeant Greene and others entered into a

conspiracy to procure equipment for their own use from a storage facility. After

deciding that he personally could not use a number of radios that he had obtained,

Sergeant Greene brought them to the shop where Airman Butler worked and “left

them there with the understanding that anyone who wanted one could have one.”

Id. at 1248. Airman Butler took one radio to his room, where he uncrated,

examined, and repacked it, and put it in his locker. He was transferred a short

time later and left the radio behind without any instructions as to its disposition.

In reversing Airman Butler’s conspiracy conviction, we held

      [n]owhere in the record can we find testimony implicating him in a
      conspiracy. This court has often noted that the essence of the crime
      of conspiracy is an agreement to violate the law. While the
      agreement need not take any particular form, there must at some
      point be a meeting of the minds in the common design, purpose, or
      object of the conspiracy.

Id. at 1249 (citation omitted). Unlike Airman Butler’s case, there is ample

evidence there was a meeting of the minds between Ms. Island and her

co-conspirators – she knew the purpose and objective of the conspiracy, agreed to


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it, and actively participated in achieving its goals by obtaining money for herself

and others.

      As to embezzlement, Ms. Island argues “[t]he ‘embezzlers’ in this case

were Tabor and Whiteskunk, . . . who were looting the Tribe’s casino proceeds.

[They] . . . had authority to acquire and access the money. They used Island

as [an] instrument to do so. Thus, Island was one step removed from the

embezzlement chain, so to speak.” Aplt. Br. at 23. 2 This is like arguing that

participants in a theft ring who deliver the stolen goods to the ring leader for

distribution are not guilty of theft because they are the underlings. We reject this

legal argument as lacking merit.

                                 Felony Conspiracy

      Ms. Island claims that because the jury found on each of the five counts of

embezzlement she obtained less than the amount required for felony

embezzlement, her conviction for felony conspiracy should be converted to

misdemeanor conspiracy. We review this question of statutory interpretation

de novo. United States v. Youts, 229 F.3d 1312, 1316 (10th Cir. 2000).

      We reject this argument under a plain reading of the conspiracy statute,

which provides that

      [if] two or more persons conspire either to commit any offense
      against the United States, or to defraud the United States, or any

2
      Messrs. Tabor and Whiteskunk could not legally access the money for their
personal use but only for the purposes in 25 U.S.C. § 2710(b)(2)(B).

                                         -5-
      agency thereof in any manner or for any purpose, and one or more of
      such persons do any act to effect the object of the conspiracy, each
      shall be fined under this title or imprisoned not more than five years,
      or both.

      If, however, the offense, the commission of which is the object of the
      conspiracy, is a misdemeanor only, the punishment for such
      conspiracy shall not exceed the maximum punishment provided for
      such misdemeanor.

18 U.S.C. § 371 (emphasis added).

      The statute requires the courts to examine the offense that is the object of

the conspiracy to determine whether the conspiracy is a felony or misdemeanor.

As such, we agree with the district court’s conclusion that

      [t]he fact that the jury found Ms. Island guilty of embezzlement of a
      sum less than $1,000 has no real bearing on whether the jury found
      guilt on the felony conspiracy charged in the indictment. It is a
      separate crime. It is a charge of conspiring to violate the laws of the
      United States, not to embezzle money from the Cheyenne & Arapaho
      tribe. The overt acts alleged in support of the conspiracy allege that
      a sum in excess of $15,000 was the object of the conspiracy. That is
      clearly a felony.

R. Vol. 1, Sentencing Hr’g at 5. See generally United States v. Gallup, 812 F.2d

1271, 1277 (10th Cir. 1987) (holding that because “[i]t is axiomatic that [the

defendants] could have been prosecuted for conspiracy without ever having




                                         -6-
committed a substantive crime,” they could be charged with felony conspiracy

and misdemeanors).

      The judgment of the district court is AFFIRMED.


                                                 Entered for the Court


                                                 Monroe G. McKay
                                                 Circuit Judge




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