APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH. (D.C. No. 2:10-CR-01088-DN-1).
Theresa M. Duncan, Albuquerque, New Mexico, for Defendant--Appellant.
Scott J. Thorley, Office of the United States Attorney (Carlie Christensen, Acting United States Attorney, and Elizabethanne C. Stevens, Assistant United States Attorney, on the brief), Salt Lake City, Utah, for Plaintiff--Appellee.
Before MATHESON, McKAY, and MORITZ, Circuit Judges.
McKAY, Circuit Judge.
Defendant Jeffrey Zander was convicted of two counts of mail fraud, two counts of wire fraud, one count of money laundering, and three counts of willful failure to file federal tax returns. He was sentenced to sixty-eight months of imprisonment and ordered to pay $202,543.92 in restitution to the Paiute Indian Tribe of Utah, the main victim of his fraud. On appeal, he challenges his convictions on the mail fraud,
wire fraud, and money laundering counts. He also challenges the length of his sentence and the amount of restitution awarded to the Tribe.
The fraud and money laundering counts at issue in this appeal all arose out of Defendant's scheme to divert federal grant money intended for the Paiute Indian Tribe for his own personal use.
The Paiute Indian Tribe of Utah is a federally recognized Indian tribe located in southern Utah, which consists of five distinct bands: the Cedar, Indian Peaks, Kanosh, Koosharem, and Shivwits bands. The Tribe's main asset is the reservation land held in trust by each of its bands.
Defendant began working for the Tribe as a tribal planner in 1998, and he subsequently became the Tribe's trust resource and economic development director. As a director, Defendant worked independently with minimal supervision. In about 2004 or 2005, Defendant suggested the Tribe seek federal grant money to fund the development of an Integrated Resource Management Plan--a comprehensive, long-term plan regarding the use, development, and management of tribal resources and assets--for each of the Tribe's bands. Tribal officials agreed the Tribe and bands would greatly benefit from the development of IRMPs to guide their resource management decisions.
Between 2005 and 2007, Defendant prepared grant proposals to request funding from the Bureau of Indian Affairs for the Tribe to develop an IRMP for each of its bands. In each grant proposal, Defendant represented that most of the grant proceeds would be used to hire and pay an outside consultant and facilitator to assist the Tribe, since " [t]here is no resident community expertise in natural resources management, strategic planning, or economics." (Supplemental R. Exs. 1-1 p. 11, 1-2A p. 4, 1-3 p. 8, 1-4 p. 13, 1-6 p. 13.) The grant proposal for each band's IRMP was approved by that band's council and by the Tribal Council, then submitted to the BIA. The completed submission forms described Defendant as the person to be contacted regarding the proposals and listed his fax number as well as the Tribal office's mailing address in the pertinent contact information.
The agency approved and awarded the following five IRMP development grants: $25,000.00 for the Koosharem Band in July 2005; $28,000.00 for the Indian Peaks Band in August 2006; $28,000.00 for the Kanosh Band in August 2006; $34,500.00 for the Cedar Band in August 2007; and $49,500.00 for the Shivwits Band in August 2007. A BIA awarding official notified the Tribe of each grant's approval by mailing the Tribe a grant award package from her office in Arizona to the Tribe's offices in Utah via certified mail. Each grant agreement provided that grant funds would be transferred to the Tribe's bank account through an Automated Clearinghouse electronic transfer.
Instead of hiring an outside consultant and facilitator to help develop IRMPs for each band, Defendant created false invoices and purchase orders for four fictitious companies and represented to the Tribe that these companies had provided consulting and facilitating services for the IRMP development projects. Based on these representations, the Tribe issued checks made out to these nonexistent companies and, at Defendant's direction, either mailed the checks to post office boxes that were actually owned or controlled by Defendant or gave them to Defendant to hand-deliver to the purported companies.
After issuing these checks, the Tribe requested reimbursement from the BIA under the IRMP grants. The local BIA office approved each of the Tribe's reimbursement
requests. After approving a request, the local office would fax the approved reimbursement form to a BIA processing center in Reston, Virginia. In accordance with the terms of the grant agreements, the government reimbursed the Tribe by wiring grant funds via an ACH transfer from the United States Treasury in Kansas City, Missouri, to the Tribe's bank account in Utah.
Defendant submitted progress reports to the government in which he represented that consulting and facilitating companies were actively involved in each of the IRMP development projects. He also represented that he traveled out of town and sometimes out of state to meet with these companies and work on the different IRMP projects. On at least one occasion, Defendant submitted his progress report to the BIA via fax.
Defendant deposited the checks made out to the fictitious companies into his personal checking accounts. He then spent the funds for his personal benefit, including using them to make a down payment on a home he purchased in November 2007. Although he expended all $165,000.00 of the IRMP grant funds awarded by the BIA, Defendant completed only one four-page IRMP for the Koosharem Band. A prosecution witness testified at trial that other IRMPs she had seen " vary in pages from a minimum of 50 to over a hundred." (R. at 903.)
The Tribe learned of Defendant's scheme in March 2008 after a bank employee called the Tribe to ask about a check made out to one of Defendant's nonexistent businesses which he had attempted to deposit into his personal account. Following a short investigation, the Tribe fired Defendant. According to a Tribal representative, the Tribe thereafter received a notice of collection from the government seeking repayment of the grant funds based on the Tribe's failure to produce the IRMPs the grants were intended to fund.
In February 2012, a federal grand jury indicted Defendant on two counts of mail fraud in violation of 18 U.S.C. § 1341, two counts of wire fraud in violation of 18 U.S.C. § 1343, one count of money laundering in violation of 18 U.S.C. § 1957, and three counts of failure to file federal tax returns in violation of 26 U.S.C. § 7203. The four fraud counts all stem from the last two grants Defendant obtained as part of his scheme--the August 2007 grants for the Cedar Band's and Shivwits Band's IRMPs. Specifically, the two mail fraud counts arose from the mailing of the grant award packages for these grants from the BIA office in Arizona to the Tribal office in Utah. The two wire fraud counts arose from: (1) a February 2008 fax from a BIA office in Utah to a BIA office in Virginia regarding reimbursement for various Tribal grant expenses, including expenses incurred under these two IRMP grants; and (2) a February 2008 ACH transfer from the U.S. Treasury in Missouri to the Tribe's bank in Utah, which included funds allocated for the IRMP grants. The money laundering count arose from Defendant's use of funds obtained through the IRMP grants to purchase a cashier's check for a down payment on his house. Finally, the three tax-related counts--none of which are at issue in this appeal--were based on Defendant's failure to file a tax return for the years 2005, 2006, and 2007.
After a seven-day trial, a jury found Defendant guilty on each of the counts in the indictment. The district court denied Defendant's Rule 29 motion for a judgment of acquittal, holding there was sufficient evidence to sustain a conviction on each of the challenged counts.
Prior to Defendant's sentencing, the probation office prepared a presentence report. This ...