The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S. *

Court of Appeals for the Seventh Circuit, sitting by designation.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FLORENCE A. WHITE EAGLE,

Defendant-Appellant.

No. 11-30352

D.C. No.

4:11-cr-00032-

SEH-1

OPINION

Appeal from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted

November 6, 2012—Portland, Oregon

Filed July 5, 2013

Before: Kenneth F. Ripple , M. Margaret McKeown, *

and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge McKeown
2 UNITED STATES V. WHITE EAGLE

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

SUMMARY

**

Criminal Law

The panel affirmed in part and reversed in part a criminal

judgment in a case arising out of the involvement by the

Bureau of Indian Affairs Superintendent at the Fort Peck

Indian Reservation in a scheme to obtain money from a tribal

credit program. 

Reversing convictions on counts charging conspiracy to

convert tribal credit program proceeds (18 U.S.C. § 371) and

theft and conversion from an Indian Tribal Organization (18

U.S.C. §§ 1163, 2), the panel held that the government’s

misapplication theory, predicated at best on an employer

directive and a civil regulation, cannot support a conviction;

and that the government’s embezzlement and conversion

theories also fail because the defendant never controlled or

had custody of the funds that she later borrowed.

Affirming a bribery conviction (18 U.S.C. § 201(b)(2)),

the panel held that a jury could easily infer a quid pro quo and

had ample evidence to conclude that the defendant’s actions

were “corrupt.”

Because the government did not show that the defendant

violated a specific duty to report credit program fraud, the

panel reversed her conviction of concealment of public

corruption (18 U.S.C. § 1001(a)(1)).
UNITED STATES V. WHITE EAGLE 3

The panel reversed a conviction for public acts affecting

a personal financial interest (18 U.S.C. § 208(a)(1)) because

the connection between the payment of a BIA Administrative

Officer’s fraudulent nominee loans and the defendant’s

alleged financial interest is remote and speculative.

The panel held that there was sufficient evidence to

support the defendant’s conviction of misprision of a felony

(18 U.S.C. § 4).

The panel rejected the defendant’s contention that her

convictions for public acts affecting a financial interest and

misprision of a felony would violate her Fifth Amendment

right to avoid self-incrimination because each charge relied

on her duty to report criminal activity that would have

exposed her to prosecution. The panel reasoned that the

connection between the defendant’s loan modification and the

BIA Administrative Officer’s use of nominee borrowers is

too remote to implicate the defendant’s Fifth Amendment

rights. 

The panel held that the district court erred at sentencing

in its application of U.S.S.G. § 2C1.1(b)(2), when it appeared

to value the loan modification using standard “loss”

calculations instead of focusing on the “value of the benefit”

the defendant received. The panel explained that any

sentencing adjustment must be based on the value of the loan

modification as a bribe, and remanded for further

proceedings.
4 UNITED STATES V. WHITE EAGLE

COUNSEL

Steven T. Potts (argued), Great Falls, Montana, for

Defendant-Appellant.

Carl E. Rostad (argued), United States Attorney’s Office for

the District of Montana, Great Falls, Montana, J. Bishop

Grewell, United States Attorney’s Office for the District of

Montana, Billings, Montana, for Plaintiff-Appellee.

OPINION

McKEOWN, Circuit Judge:

Florence White Eagle appeals her conviction and sentence

on six counts arising out of her involvement in a scheme to

obtain money from a tribal credit program: (I) conspiracy to

convert tribal credit program proceeds in violation of

18 U.S.C. § 371; (II) theft and conversion from an Indian

Tribal Organization in violation of 18 U.S.C. §§ 1163, 2; (III)

bribery in violation of 18 U.S.C. § 201(b)(2); (IV)

concealment of public corruption in violation of 18 U.S.C.

§ 1001(a)(1); (V) public acts affecting a personal financial

interest in violation of 18 U.S.C. § 208(a); and (VI)

misprision of a felony in violation of 18 U.S.C. § 4. Without

a doubt, White Eagle turned a blind eye to fraud and

facilitated its cover up. The difficulty for the prosecution is

that, in the main, the crimes charged did not fit the facts. We

affirm White Eagle’s convictions on Counts III and VI

(bribery and misprision of a felony), but reverse the

convictions on Counts I, II, IV, and V, and remand for

resentencing.
UNITED STATES V. WHITE EAGLE 5

BACKGROUND

White Eagle was the Bureau of Indian Affairs (“BIA”)

Superintendent at the Fort Peck Indian Reservation. The BIA

is the federal government’s trustee for lands on Fort Peck in

northeastern Montana, which is home to the Assiniboine and

Sioux Tribes. Until early 2008, the BIA oversaw the Fort

Peck Credit Program (“Credit Program”), which provided a

supplemental source of credit to tribal members and was

intended to “rais[e] the economic status of members of the

Tribes to a point where they can look to the same sources of

financing as are looked to by other citizens.” One of White

Eagle’s duties was to sign loan documents for Credit Program

loans that pledged trust assets as collateral.

The Credit Program was staffed with four tribal

employees and two BIA employees—a loan specialist and a

loan assistant. The four tribal employees were supervised by

the two BIA employees, who, in turn, were supervised by

Toni Greybull, the BIA Administrative Officer. White Eagle

was Greybull’s immediate supervisor and the two women

worked together at Fort Peck for many years.

Greybull was a central participant in a fraudulent scheme

to advantage Credit Program employees. The setup was not

particularly complicated—Credit Program employees

obtained loans by filing applications in the names of

“nominee,” or stand-in, relatives and then splitting the

proceeds amongst themselves. To avoid the three-person

Credit Committee tasked with application review and

approval, Greybull approved many of the loans herself. This

scheme was extensive: an Office of the Inspector General

(“OIG”) audit revealed that of the approximately $1.6 million

loaned by the Credit Program, around $1.2 million went to
6 UNITED STATES V. WHITE EAGLE

Credit Program employees and their stand-in family

members.

Greybull died in March 2008, leaving behind a number of

unpaid loans in others’ names. In May 2008, Greybull’s

sister Linda Christiansen approached White Eagle with

documentation for nominee loans that Greybull had taken out

in Christiansen’s name as well as in the name of Arthur

Greybull, III (Toni Greybull’s son). Christiansen requested

that the loans be repaid out of Greybull’s life insurance.

Apparently worried that inquiries about the loans would lead

to an audit that potentially would expose the fraud, White

Eagle contacted Greybull’s husband Arthur Greybull Jr. and

falsely informed him that Toni Greybull (not the nominee

borrowers) had outstanding loans with the Credit Program.

Greybull’s husband then paid the loans with money from

Greybull’s life insurance.

Greybull was not the only beneficiary of the loan

program. White Eagle also obtained loans from the Credit

Program, though not through the use of nominee borrowers.

In 2002, she took out a short-term loan of $2,000, and in

February 2007 she obtained a long-term loan for $5,050.

White Eagle made payments as required under the terms of

the loans. The long-term loan was modified twice to allow

borrowing of additional funds: in January 2008 the loan was

increased by $15,000, and in June 2009 it was increased by

another $5,050. These modifications were approved by the

Credit Program’s Credit Committee, not Greybull. Although

the government does not allege the loans were fraudulently

procured, White Eagle’s long-term loan modification was

contrary to specific directives she had received. When the

BIA regional director discovered in late 2007 that White

Eagle had taken out loans, he told her to pay them off and
UNITED STATES V. WHITE EAGLE 7

discontinue participation in the Credit Program due to the

conflict of interest. The government argues that White

Eagle’s Credit Program loans also violated the prohibition on

holding financial interests that conflict with conscientious

performance of duty. See 5 C.F.R. § 2635.101(b)(2).

At trial, the government argued that Greybull arranged the

2008 loan modification as quid pro quo for White Eagle’s

assistance in dealing with possible discovery of the nominee

loan scheme triggered by Greybull’s mother Patricia Menz.

In September 2007, Menz visited the Credit Program offices

to pay off a loan she had personally taken out and discovered,

to her surprise, that other loans had been taken out in her

name and without her knowledge or consent. The Credit

Program employee who assisted Menz had obtained

fraudulent loans himself and knew that Greybull had obtained

fraudulent loans. He directed Menz to speak to Greybull for

answers to her questions. Instead, and without telling

Greybull or others involved in the scheme, Menz contacted

the OIG and reported the loan irregularities.

Menz did not complain to the BIA or the Credit Program,

and there was no official reason for White Eagle to address

her concerns. Nonetheless, in December 2007, White Eagle

sent Menz a letter on BIA letterhead falsely assuring her that

she owed nothing because the loans had been erroneously

listed in her name and had also been paid off. The day before

White Eagle sent the letter, she had applied for the $15,000

increase in her long-term loan. Although the loan was

approved bythe Credit Committee, the government presented

evidence that Greybull fast-tracked its approval, even

prevailing upon Credit Program staff to release a hold on

White Eagle’s account. The government also argued that the

loan issued on unusually favorable terms. Under its theory,
8 UNITED STATES V. WHITE EAGLE

the fast-tracked and favorable loan modification was a payoff

for White Eagle’s assistance in the coverup.

The fraudulent scheme was uncovered during a 2009

audit conducted by the Fort Peck Tribes. The audit

determined that fraud had been taking place since at least the

early 1990s, with participation by six Credit Program

employees. The investigation also identified Christiansen and

Greybull III (the nominal recipients of the loans paid off by

Greybull’s life insurance) as participants.

White Eagle’s prosecution arose out of the audit. In

March 2011, the government charged White Eagle with six

counts stemming from her involvement in the fraudulent

scheme and the loan modifications. The jury found her guilty

on all counts. The district court imposed a sentence of 51

months on Counts I through V, and 36 months for Count VI,

to run concurrently. White Eagle appeals her convictions on

all counts, as well as the district court’s application of the

four-level sentencing enhancement based on the value of the

bribe.

ANALYSIS

I. CONVICTIONS

White Eagle preserved her claim of insufficient evidence

by moving for a judgment of acquittal at the close of

evidence. Fed. R. Crim. P. 29. We therefore review de novo

the sufficiency of the evidence supporting the conviction.

United States v. Tucker, 641 F.3d 1110, 1118 (9th Cir. 2011).

Evidence is sufficient to sustain a conviction if, when

construed in the light most favorable to the prosecution, “any

rational trier of fact could have found the essential elements
UNITED STATES V. WHITE EAGLE 9

of the crime beyond a reasonable doubt.” United States v.

Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)

(emphasis in original)).

A. Counts I and II: Conspiracy, Theft and

Conversion of Indian Tribal Organization

Property

In Counts I and II, the government alleged that White

Eagle and Greybull conspired to embezzle or convert Credit

Program funds. According to the government, the object of

the conspiracywas White Eagle’s $15,000 loan modification.

We note that these charges are narrowly targeted, particularly

in comparison to the wide-ranging nominee borrower scheme.

Counts I and II focus on Menz’s discovery of the loans in her

name, White Eagle’s assistance in the attempted cover-up,

and White Eagle’s receipt of a loan modification—events

beginning in late 2007, long after Greybull’s nominee scheme

occurred was implemented.

The jury was properly instructed that conspiracy required

“an agreement between two or more persons” and “a plan to

commit at least one of the crimes alleged in the indictment as

an object of the conspiracy.” Ninth Circuit Model Criminal

Jury Instruction No. 8.20. The government argues that “[t]he

jury could infer an agreement” from Greybull’s loans and

White Eagle’s attempt to cover up the fraudulent activity.

However, it does not argue that Greybull’s loans, which

predated the alleged conspiracy, were its object. Instead,

under each of the misappropriation theories, White Eagle’s

loan modification is touted as the object of the conspiracy:

“obtaining monies that her supervisor had prohibited”

(misapplication) or using “herlawful authority over the funds
10 UNITED STATES V. WHITE EAGLE

to gain what was an otherwise unauthorized possession of the

funds” (embezzlement and conversion). Hence, we analyze

White Eagle’s loan modification, not Greybull’s fraudulent

nominee loans, as the basis for the convictions on Counts I

and II.

The government presented no evidence that White Eagle

defrauded the Credit Program or that the applications for her

long-termloan and subsequent modifications were inaccurate

or incomplete. See Carlos-Blaza v. Holder, 611 F.3d 583,

588 (9th Cir. 2010) (analyzing charge for misapplication of

bank funds and holding that “a conviction for

misapplication . . . necessarily involves intent to defraud”);

United States v. Dreitzler, 577 F.2d 539, 546 (9th Cir. 1978)

(to show misapplication, the government must prove that “the

bank’s funds were disbursed under a false record”). Unlike

core participants in the nominee borrower scheme, White

Eagle did not use nominee borrowers to surreptitiously gain

a personal benefit. Cf. id. at 545 (upholding misapplication

conviction where defendant “set up bogus loan transactions,

presented . . . forged documents to the bank, and received the

proceeds of the ‘loans’ which he used for his [insurance]

agency’s benefit”). The posture of White Eagle’s

participation forecloses a conviction under a traditional

misapplication theory involving fraud or misrepresentation of

some kind.

The government instead tethers its theory to two

restrictions affecting White Eagle’s participation in the Credit

Program. The first restriction is that White Eagle’s

supervisor in 2007 instructed her not to borrow from the

Credit Program; the second, 5 C.F.R. § 2635.101(b)(2),

prohibits holding financial interests that conflict with

conscientious performance of duty. However, neither
UNITED STATES V. WHITE EAGLE 11

violation of an employer’s instruction nor a civil rule by itself

supports a conviction for conversion, theft, or misapplication

of funds.

This conclusion follows from analogous cases involving

prosecutions for misapplication of bank funds under

18 U.S.C. § 656. In United States v. Wolf, 820 F.2d 1499,

1505 (9th Cir. 1987), the defendant submitted fraudulent loan

applications in the name of stand-in borrowers and

additionally failed to make disclosures required by Federal

Reserve Regulation O. Despite evidence that the loan

applications were fraudulent, we reversed the misapplication

conviction because of the “serious risk that the jury would

find Wolf guilty of criminal misapplication . . . because he

failed to comply with Regulation O,” a civil regulation. Id.;

see also United States v. Christo, 614 F.2d 486, 492 (5th Cir.

1980) (“A conviction, resulting from the government’s

attempt to bootstrap a series of checking account overdrafts,

a civil regulatory violation, into an equal amount of

misapplication felonies, cannot be allowed to stand.”).

“[U]nder the logic of Christo and Wolf, it is impermissible to

use the violation of a civil statute to ipso facto ‘supply a

crucial element’ of a criminal offense.” United States v.

Eriksen, 639 F.3d 1138, 1150 (9th Cir. 2011). The

government’s misapplication theory, predicated at best on an

employer directive and a civil regulation, cannot support a

conviction here.

The government’s embezzlement and conversion theories

also fail because White Eagle never controlled or had custody

of the funds that she later borrowed. Even though she signed

paperwork for loans involving the pledge of trust assets as

collateral, the Credit Committee (of which White Eagle was

not a member) approved loans before a check would issue.
12 UNITED STATES V. WHITE EAGLE

See id. at 1145 (explaining that “[e]mbezzlement is the

fraudulent appropriation of property by a person to whom

such property has been entrusted, or into whose hands it has

lawfully come”) (alteration in original; citation and internal

quotation marks omitted); United States v. Andreen, 628 F.2d

1236, 1241 (9th Cir. 1980) (“[C]onversion encompasses the

use of property, placed in one’s custody for a limited purpose,

in an unauthorized manner or to an unauthorized extent.”).

Nor does Greybull’s shepherding White Eagle’s loan

modification through the approval process and signing

paperwork constitute embezzlement. In contrast to

Greybull’s own nominee loans (which circumvented the

Credit Committee), White Eagle’s loan modification was

ultimately approved by the Credit Committee. Even in the

light most favorable to the government, the evidence

contradicts an embezzlement or conversion theory.

Because the alleged object of the conspiracy—the loan

modification—was not itself criminal, there can be no

conspiracy. See United States v. Montgomery, 384 F.3d

1050, 1062 (9th Cir.2004) (holding that a conspiracy requires

an agreement to engage in criminal conduct). The

government cannot bootstrap itself to a criminal conviction

simply because White Eagle disobeyed a supervisor’s order

or contravened a general civil conflict of interest statute. We

reverse White Eagle’s convictions on Counts I and II.

B. Count III: Bribery

The quid pro quo alleged here is simple. White Eagle, as

BIA Superintendent, helped Greybull cover up her fraudulent

scheme; in exchange Greybull helped her obtain a favorable

loan modification. The government was required to prove

that: (1) White Eagle “was a public official;” (2) she received
UNITED STATES V. WHITE EAGLE 13

“[some]thing of value . . . in return for . . . being induced to

do or omit to do an[] act in violation of [her] official duty;”

and (3) she acted “corruptly”—that is, with the “intent to be

influenced to perform an act” that violated her official duty.”

See 18 U.S.C. § 201(b)(2)(C); United States v. Leyva,

282 F.3d 623, 625-626 (9th Cir. 2002).

White Eagle does not challenge her status as a public

official. Instead, she argues that she received nothing of

value because Greybull’s assistance with the loan

modification was unnecessary and that she did not act

corruptly because her actions could not have affected the

OIG’s investigation. White Eagle also challenges the

sufficiency of the indictment, which alleges that agreement

and payment took place after she sent the letter to Menz.

The evidence is consistent with bribery, and surely

sufficient under Jackson v. Virginia. 443 U.S. at 319

(evidence is sufficient if “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt”) (emphasis in original). Upon hearing of Menz’s

concerns, White Eagle conducted almost no investigation into

whether Menz’s loans were actually paid, and did not report

the issue to her superior. Instead, on December 12, 2007, she

wrote a letter to Menz on BIA letterhead falsely assuring her

that the loans had been paid off and that they had only

erroneously been listed under Menz’s name. Only one day

earlier, White Eagle had applied for the $15,000 loan

modification. The modification appears to have issued on

irregular and favorable terms: it included improved

repayment provisions, and the documentation did not include

a pledge of trust assets as was normally required. Greybull,

whose signature appeared on the application, fast-tracked the

loan and prevailed upon the Credit Program to release a hold
14 UNITED STATES V. WHITE EAGLE

on White Eagle’s account that arose after a borrower for

whom White Eagle had co-signed defaulted on a loan.

A rational jury could easily infer a quid pro quo from

these facts, concluding that White Eagle wrote Menz a letter

to alleviate her concerns and turned a blind eye to the

nominee borrower scheme in exchange for Greybull’s later

assistance in securing a quick and favorable loan

modification. Although the loan modification might well

have issued without Greybull’s involvement, the jury was

entitled to find that her assistance was “something of value,”

particularly given the favorable terms.

White Eagle also argues that she took no corrupt actions

because her letter to Menz could not have affected the OIG’s

response to Menz’s complaint. In doing so, she misconstrues

the import of the letter—transmitting the letter was corrupt

regardless of its impact, as success is not an element of the

offense. Moreover, White Eagle failed to report the

obviously illegal nominee borrower scheme. See United

States v. Birdsall, 233 U.S. 223, 231 (1914) (adopting, for

bribery purposes, a broad definition of official acts and noting

that “[t]o constitute . . . official action, it was not necessary

that [the conduct] be prescribed by statute”); O’Campo v.

Hardisty, 262 F.2d 621, 624 (9th Cir. 1958) (same). The jury

had ample evidence to conclude that White Eagle’s actions

were “corrupt.”

White Eagle argues that “[a] person cannot be bribed for

a past act” and urges us to reject the indictment because it

states that White Eagle agreed to the scheme and accepted the

payment in January 2008, after she sent the letter to Menz.

But the indictment sets no dates in stone. While Count III

states that White Eagle agreed to the scheme and received the
UNITED STATES V. WHITE EAGLE 15

loan modification “on or around” January 2, 2008, the

evidence in the record is consistent with an agreement

between White Eagle and Greybull that predated the

December letter to Menz. Moreover, any challenge to the

sufficiency of Count III of the indictment is misplaced

regardless of any imprecision as to timing. The indictment

tracks the language of the bribery statute, contains the

elements of the offense, and specifies which of White Eagle’s

actions violated the law, thus allowing her to avoid another

prosecution on the same actions. See Hamling v. United

States, 418 U.S. 87, 117 (1974); United States v.

Milovanovic, 678 F.3d 713, 727 (9th Cir. 2012). We affirm

White Eagle’s conviction under Count III.

C. Count IV: Falsification, Concealment, or Covering

Up of a Material Fact

The district court properly instructed the jury that a

conviction under 18 U.S.C. § 1001(a)(1) requires that: (1) the

defendant had a duty to disclose material information, (2) the

defendant falsified, concealed, or covered up such a fact by

trick, scheme, or fraud, (3) the falsified, concealed, or

covered up fact was material, (4) the falsification and/or

concealment was knowing and willful, and (5) the material

fact was within the jurisdiction of the Executive Branch. See

United States v. Varbel, 780 F.2d 758, 762 (9th Cir. 1986)

(indictment alleging concealment in violation of 18 U.S.C.

§ 1001 failed where there was no duty to disclose); see also

United States v. Moore, 446 F.3d 671, 677 (7th Cir. 2006).

White Eagle challenges the legal sufficiency of her duty to

report Greybull’s fraud and claims that she did report the

fraud to Darryl LaCounte, the BIA Deputy Regional Director.
16 UNITED STATES V. WHITE EAGLE

White Eagle’s claim that she reported the fraudulent

scheme does not withstand scrutiny. She argues only that she

told LaCounte that Greybull’s husband had paid the balance

of a loan for one of Greybull’s relatives. This hardly counts

as an actual “report” alerting LaCounte to the fraudulent

activity. LaCounte’s testimony also contradicts White

Eagle’s claim that she reported the fraud. He recalled

discussing Greybull’s husband’s payment with White Eagle,

but did not remember hearing about Greybull’s fraud.

LaCounte also testified that he would have reacted to any

report regarding fraudulently obtained loans—but he did not

investigate or take any actions. The jury was entitled to reject

White Eagle’s account and credit LaCounte’s testimony. We

cannot overturn its credibility determinations. See United

States v. Yossunthorn, 167 F.3d 1267, 1270 (9th Cir. 1999)

(noting that a jury’s credibility finding cannot be reviewed on

appeal). We therefore focus our analysis on whether White

Eagle’s failure to report Greybull’s fraud can support a

conviction for concealment under 18 U.S.C. § 1001(a)(1).

White Eagle, like all government employees, had a duty

to “disclose waste, fraud, abuse, and corruption to appropriate

authorities,” codified in the Code of Federal Regulations as

a “[b]asic obligation of public service.” See 5 C.F.R.

§ 2635.101(b)(11). It is not disputed that White Eagle

violated this fundamental rule. However, she is not charged

with breaching the public trust or failing to perform her duties

as a public servant or government employee. Instead, she is

charged with fraudulent concealment, a narrower offense

under the umbrella of “Fraud and False Statements.”

18 U.S.C. ch. 47. Because failing to report fraud in violation

of generally applicable ethical principles is not equivalent to
UNITED STATES V. WHITE EAGLE 17

 White Eagle’s failure to report Greybull’s felony was charged in Count 1

VI (misprision of a felony) and was not a part of this Count.

a “false statement,” the facts do not support a conviction

under § 1001(a)(1).1

As other circuits have recognized, a conviction under

§ 1001(a)(1) is proper where a statute or government

regulation requires the defendant to disclose specific

information to a particular person or entity. See United States

v. Tobon-Builes, 706 F.2d 1092, 1096 (11th Cir. 1983). So,

for example, when a defendant submits a report that omits

particular information that by law must appear in the report,

a conviction for concealment is proper. See United States v.

Muntain, 610 F.2d 964, 971–72 (D.C. Cir. 1979). The same

holds true when a defendant responds to specific questions on

a particular topic. See United States v. Stewart, 433 F.3d 273,

318 (2d Cir. 2006) (holding that SEC investigator’s specific

questions regarding another individual’s stock trades created

a duty to disclose information about those trades).

In these situations, the defendant’s silence is akin to an

affirmative misrepresentation, and therefore logically falls

within the scope of § 1001’s prohibition on false and

fraudulent statements. See United States v. Mubayyid,

658 F.3d 35, 70-71 (1st Cir. 2011) (“[B]y filing the false

Form 990s, which he signed under penalty of perjury,

Mubayyid did not passively fail to disclose material facts; he

engaged in an affirmative act of concealment. . . . His

conduct is therefore sufficient grounds for a conviction under

§ 1001(a)(1).”) (citation omitted). Similarly, if a financial

institution fails to report particular transactions as required by

law, its silence is effectively a statement that no such

transactions took place. Cf. United States v. Puerto, 730 F.2d
18 UNITED STATES V. WHITE EAGLE

627, 633 (11th Cir. 1984) (holding that a defendant is guilty

of concealment of a material fact when he causes either an

inaccurate currency transaction report or no currency

transaction report to be sent to the Internal Revenue Service).

We can identify no analogous “silent statement” by White

Eagle. It is true that White Eagle concealed Greybull’s loans

by writing a false letter to Menz claiming that the loans had

been paid off and by inducing Greybull’s husband to pay the

loan balances with life insurance proceeds. However, neither

act involved an affirmative false or misleading statement to

the government. The government argues that White Eagle

further concealed the fraud by informing LaCounte that

Greybull’s nominee loans had been paid off, but not telling

him that they had been fraudulently obtained in the first

place. But that incomplete report—while misleading—did

not contravene a specific reporting duty. White Eagle’s

partial disclosure made no representation, explicit or implicit,

as to the existence of fraud in the Credit Program. Her acts

may be improper and unethical, but they are not sufficient for

a concealment conviction under § 1001(a)(1).

The D.C. Circuit’s treatment of an analogous issue in

United States v. Safavian, 528 F.3d 957 (D.C. Cir. 2008), is

instructive. The court overturned a conviction under

§ 1001(a)(1) that, like here, arose out of an alleged violation

of 5 C.F.R. § 2635.101(b)(11). Id. at 959. The defendant, a

GSA employee, sought ethical advice about participating in

golf trip sponsored by Jack Abramoff, but did not disclose

Abramoff’s business before the GSA in his request for the

ethics opinion. Id. at 960. The government argued that the

defendant’s omission of this relevant detail breached his duty

to disclose under the regulation and other ethical principles.

Id. at 964. The court acknowledged the ethics rules required
UNITED STATES V. WHITE EAGLE 19

disclosure relating to corruption, but found that the

relationship between those requirements and the duty to

report under § 1001(a)(1) was “tenuous at best.” Id. It noted

that there was “no indication of the particular facts or

information” that should be disclosed, and that the regulation

contained no indication that it applied to the defendant’s

conduct. Id. at 965. It reversed the conviction under

§ 1001(a)(1) because there was no duty to disclose. Id.

The same reasoning applies here. Although the regulation

discusses reporting “fraud” and “corruption,” 5 C.F.R.

§ 2635.101(b)(11), it does not provide specifics on what kind

of information should be reported or to whom. Nor does it

discuss criminal liability for failure to abide by its provisions.

See Safavian, 528 F.3d at 964 (Under the Fifth Amendment,

“the defendant must have ‘fair notice . . . of what conduct is

forbidden. . . . [T]his “fair warning” requirement prohibits

application of a criminal statute to a defendant unless it was

reasonably clear at the time of the alleged action that

defendant[‘s] actions were criminal.’”) (first three alterations

in original) (citation omitted). Nothing in § 1001(a)(1) or the

regulation indicates that a failure to report could effectively

be read as a statement that no fraud was taking place.

Because the government did not show that White Eagle

violated a specific duty to report Credit Program fraud, we

reverse her conviction as to Count IV.
20 UNITED STATES V. WHITE EAGLE

 Section 208(a) provides that 2

[W]hoever, being an officer or employee of the

executive branch . . . participates personally and

substantially as a Government officer or employee . . .

in a judicial or other proceeding, application, request

for a ruling or other determination, contract, claim,

controversy, charge, accusation, arrest, or other

particular matter in which, to his knowledge, he . . . has

a financial interest . . . [s]hall be subject to the penalties

set forth in section 216 of this title.

18 U.S.C. § 208(a).

D. Count V: Public Acts Affecting a Personal

Financial Interest

White Eagle was also indicted under 18 U.S.C. § 208(a),

the basic criminal conflict of interest statute, based on her

2

alleged concealment of Greybull’s fraudulent scheme.

According to the government, the concealment furthered

White Eagle’s own interests because she wanted the loan

program to continue so that she could obtain additional future

loans and ensure that she kept her job; both would be in

jeopardy if the scheme was discovered. Those interests are

too remote from White Eagle’s acts to sustain a conviction.

Section 208(a) regulates a limited set of “particular

matters,” generally arising out of discrete matters with a

direct impact on the government employee’s finances. See 5

C.F.R. § 2640.103(a)(1) (listing examples that involve the

award and maintenance of government contracts, specific

hiring decisions, and use of a particular business’s services).

Illustrative cases under § 208(a) underscore the link between

the conflict and a real, rather than speculative, interest in a

particular matter. See, e.g., United States v. Selby, 557 F.3d
UNITED STATES V. WHITE EAGLE 21

968, 975 (9th Cir. 2009) (per curiam) (employee whose

husband earned commission from a software sale to the

government had sufficient financial interest to sustain

conviction under § 208(a) where she had actively lobbied for

increased use of her husband’s software); United States v.

Jewell, 827 F.2d 586, 587 (9th Cir. 1987) (financial interest

requirement of § 208(a) was met where the government

employee signed invoices authorizing payment to his own

company); United States v. Smith, 267 F.3d 1154, 1156–57

(D.C. Cir. 2001) (referral of patients to specific mental health

clinic to which defendant had loaned money was sufficient

under § 208(a)).

The government argued that the “particular matter”

underlying this Count was White Eagle’s request that

Greybull’s husband pay off Greybull’s nominee loans with

the proceeds of Greybull’s life insurance. While an employee

need not personally stand on either side of an underlying

transaction, the link between the employee’s interest and the

public act must be direct and predictable. See United States

v. Lund, 853 F.2d 242, 243 (4th Cir. 1988) (applying statute

to federal employee’s involvement in hiring decision

involving a relative). There was no such clear link here.

The connection between the payment of Greybull’s

fraudulent nominee loans and White Eagle’s alleged financial

interest is remote and speculative. While White Eagle’s acts

directly concealed Greybull’s fraud, her own interests were

further downstream. To find an effect on White Eagle’s

continued employment and/or her future ability to obtain

Credit Program loans, we must assume that discovery of

Greybull’s fraud would have led to a wide-scale

investigation, and one of two outcomes: (1) a change in

policy preventing loans to BIA employees that would not
22 UNITED STATES V. WHITE EAGLE

affect White Eagle unless and until she desired additional

loans; or (2) the conclusion that White Eagle was at fault to

a degree justifying her termination. This chain of events

requires hypothesis heaped on hypothesis and is not the

“close causal link” between the request to pay and the effect

on the claimed financial interests. Selby, 557 F.3d at 975.

Any proposed link is fraught with contingencies, particularly

because Greybull’s underlying fraud was part of a

longstanding scheme that long predated claimed complicity

by White Eagle. See 5 C.F.R. § 2640.103(a)(3)(i) (“A

particular matter will not have a direct effect on a financial

interest, however, if the chain of causation is attenuated or is

contingent upon the occurrence of events that are

speculative.”). Accordingly, White Eagle’sfinancial interest

in this matter was insufficient under 18 U.S.C. § 208(a). We

reverse her conviction on Count V.

E. Count VI: Misprision of a Felony

Misprision of a felony in violation of 18 U.S.C. § 4

requires the government to establish: (1) the commission and

completion of a felony by a third party, (2) the defendant’s

knowledge of the felony, (3) the defendant’s failure to notify

the authorities, and (4) that the defendant took an affirmative

step to conceal the crime. United States v. Ciambrone,

750 F.2d 1416, 1417 (9th Cir. 1985).

The crime here was Greybull’s fraudulent use of nominee

borrowers. There was evidence, however, that White Eagle

knew of the fraud: Christiansen told White Eagle that the

loans in her name and Greybull’s son’s name actually

belonged to Greybull, and that the loans needed to be paid out

of Greybull’s life insurance policy. White Eagle never

notified relevant authorities of Greybull’s use of nominee
UNITED STATES V. WHITE EAGLE 23

borrowers, and concealed Greybull’s fraud by arranging for

Greybull’s husband to pay off the long-term loans with life

insurance proceeds to head off any investigation into the

matter.

As with the bribery charge, White Eagle argues that there

was no concealment and claims that she reported the crime by

notifying Darryl LaCounte, the relevant BIA official, that

Greybull’s husband had paid the balance of a loan for one of

Greybull’s relatives. This report was insufficient because the

law requires the reporting of the “commission of a felony,”

not just related acts. See 18 U.S.C. § 4 (“Whoever, having

knowledge of . . . a felony . . . does not as soon as possible

make known the same” may be subject to penalties.)

(emphasis added). LaCounte also testified to the contrary,

and the jury was entitled to reject White Eagle’s story to the

extent that it conflicted with LaCounte’s. See Yossunthorn,

167 F.3d at 1270 (a jury’s credibility finding cannot be

reviewed on appeal).

White Eagle additionally claims that she took no

affirmative step to conceal the crime because the payment of

Christiansen and Greybull III’s loans did not make it any

harder for the government to uncover Greybull’s fraud.

However, the jury heard testimony from the tribe’s chief

financial officer that her audit focused primarily on loan

payments, not their origination. Because this evidence

showed that paid off loans were less likely to be investigated,

the jury could conclude that payment of the loans made the

discovery of the fraud less likely and, therefore, that White

Eagle took an affirmative step to conceal the felony.

White Eagle finally argues that her conviction cannot

stand because there was no underlying prosecution relating to
24 UNITED STATES V. WHITE EAGLE

the long-term loans that Greybull’s husband paid and that she

allegedly concealed. We have never required evidence of a

prosecution or conviction for the third party’s offense as a

prerequisite for a misprision conviction—only the completion

of the offense. See Ciambrone, 750 F.2d at 1417 (listing

commission and completion of a felony, but not conviction,

as elements of the offense); United States v. King, 402 F.2d

694, 695 (9th Cir. 1968) (holding, without discussing

prosecution or conviction of the principals, that sufficient

evidence supported the jury’s finding that the principals

committed a felony). Any other conclusion could bar

prosecution in cases like this, where the third party dies or for

other reasons is not charged and/or convicted before the

defendant is tried. Reversal of Count VI on these grounds is

not warranted, and we affirm White Eagle’s conviction on

Count VI.

F. White Eagle’s Fifth Amendment Defense

White Eagle also argues that convictions for Counts V

(public acts affecting a financial interest) and VI (misprision

of a felony) would violate her Fifth Amendment right to

avoid self-incrimination because each charge relied on her

duty to report criminal activity that would have exposed her

to prosecution. However, these convictions were based on

White Eagle’s failure to report Greybull’s crimes, not her

own alleged criminal activity. The connection between

White Eagle’s loan modification and Greybull’s use of

nominee borrowers is too remote to implicate White Eagle’s

Fifth Amendment rights.

White Eagle cites to persuasive authority that a misprision

conviction cannot stand where the defendant’s duty to report

would have furnished evidence against the defendant.
UNITED STATES V. WHITE EAGLE 25

Notably, these cases arise where the defendants’ criminal

activity arose out of the same transactions that constituted the

felonies they were obligated to report. See King, 402 F.2d at

697 (defendant who was present at meetings of conspirators

before and after bank robbery, received some proceeds from

it, and helped participants leave town could not be prosecuted

for failure to report robbery); United States v. Kuh, 541 F.2d

672, 677 (7th Cir. 1976) (prosecution for misprision violated

Fifth Amendment because the defendant’s duty to report

armored car robbery would have revealed his receipt and

possession of money stolen in that same crime). In contrast,

White Eagle’s liability for her allegedly criminal

activity—receipt of the loan modification—was not directly

connected to the criminal activity she failed to report,

Greybull’s use of nominee borrowers.

White Eagle’s invocation of the Fifth Amendment is

insufficient because her disclosure of Greybull’s scheme

would not have provided a strong enough “link in the chain

of evidence needed to prosecute” her for her own misdeeds.

Cf. King, 402 F.2d at 697 (Fifth Amendment protections

apply where the “individual has reasonable cause to fear he

might . . . be convicted” because of the information he

reveals.). It is true, as White Eagle argues, that the disclosure

of Greybull’s fraud might have led to an audit that might have

exposed other frauds, which might in turn have implicated

White Eagle. However, as the government points out,

Menz’s complaint had already triggered an OIG investigation,

but no extensive audit, so discovery was by no means assured

even if White Eagle had reported Greybull’s activity.

Because the connection between disclosure and prosecution

was tenuous and speculative, no Fifth Amendment violation

arises out of White Eagle’s convictions on Counts V and VI.
26 UNITED STATES V. WHITE EAGLE

II. SENTENCING

We review de novo the district court’s interpretation of

the Sentencing Guidelines, its application of the Guidelines

to the facts for abuse of discretion, and its factual findings for

clear error. United States v. Loew, 593 F.3d 1136, 1139 (9th

Cir. 2010).

The district court correctly set White Eagle’s base offense

level at 14, as she was a public official within the meaning of

the law. See U.S. Sentencing Guidelines Manual

(“U.S.S.G.”) § 2C1.1(a)(1) (Nov. 2012); 18 U.S.C.

§ 201(a)(1). However, the district court appears to have erred

in the next step: adjusting the sentence based on “the value of

the payment, the benefit received or to be received in return

for the payment, the value of anything obtained or to be

obtained . . . , or the loss to the government from the offense,

whichever is greatest.” U.S.S.G. § 2C1.1(b)(2). The district

court appropriately looked to the loan modification, but

simply recited the Guidelines language before concluding that

“the value is the $15,000 loan” and making adjustments to

that figure based on White Eagle’s payments. While the

district court’s cryptic statement gives little insight into its

methodology, it appears that it valued the loan modification

using standard “loss” calculations instead of focusing on the

“value of the benefit” White Eagle received as the Guidelines

require.

Given our reversal of the conversion and misapplication

conviction, there is no $15,000 “loss” to the government that

could be used as the basis for the sentencing adjustment. Nor

is there any evidence that White Eagle’s loan modification

was fraudulently obtained such that its entire amount could be

considered a loss under § 2B1.1, which governs loss
UNITED STATES V. WHITE EAGLE 27

calculations for financial crimes based in fraud and other

forms of theft. See U.S.S.G. § 2B1.1, introductory cmt.

(noting that § 2B1.1 addresses “basic forms of property

offenses [like] theft, embezzlement, fraud, forgery,

counterfeiting”). Any sentencing adjustment must therefore

be based on the value of the loan modification as a bribe.

Section 2C1.1, which governs valuation, does not

contemplate using § 2B1.1 to determine the “value of the

benefit received or to be received” in a bribery conviction.

U.S.S.G. § 2C1.1, cmt. n.3 (stating that “‘[l]oss,’ for purposes

of [§ 2C1.1(b)(2)], shall be determined in accordance with”

§ 2B1.1, but separately discussing the value of the benefit or

payment) (emphasis added). Where, as here, there is no loss,

or the loss is not the largest of the listed values, § 2B1.1

becomes relevant only after the value of the benefit or

payment is otherwise determined. See U.S.S.G.

§ 2C1.1(b)(2) (“If the value of the payment [or] the

benefit . . . exceeded $5,000, increase by the number of levels

from the table in § 2B1.1.”). The district court therefore erred

to the extent it relied on § 2B1.1’s methodology for valuation

purposes.

The district court also erred in equating the value of the

loan modification to a cash payment of the same size. “The

value of a transaction is often quite different than the face

amount of that transaction.” United States v. Fitzhugh,

78 F.3d 1326, 1331 (8th Cir. 1996). The Fitzhugh court

looked to § 2C1.1 for guidance in a commercial bribery

matter governed by § 2B4.1 and concluded that “[w]hen a

loan is obtained by bribes, it is likely to be at favorable terms,

in which case its value will typically be the difference

between the actual cost of the loan, and the cost of the same

loan at fair market terms and conditions.” Id. This
28 UNITED STATES V. WHITE EAGLE

conclusion follows from § 2C1.1’s mandate to focus on the

net value of “‘the benefit received or to be received.’”

U.S.S.G. § 2C1.1, cmt. n.3 (noting that where a contract is

awarded in exchange for a bribe, the “benefit” from the

contract is the profit made thereon, not the entire payment

due under the contract).

The Eighth Circuit’s Fitzhugh decision is instructive here

because White Eagle was not bribed with a loan she was not

expected to repay. Instead, she received an expedited loan

that appears to have issued on better terms than standard

Credit Program loans. It is unclear, however, whether White

Eagle would have received the loan at all absent Greybull’s

intervention. Both of those issues can factor in to the

ultimate valuation of the net benefit conferred on White Eagle

by the loan modification. We are not in a position to dictate

the precise valuation methodology on appeal. Instead,

because the district court rested its valuation decision on the

face value of the loan and did not link its calculations to the

“value of the benefit [White Eagle] received,” we remand for

further proceedings consistent with this opinion. U.S.S.G.

§ 2C1.1, cmt. n.3; see also Fitzhugh, 78 F.3d at 1331 (finding

that “the scanty evidence of record regarding the [favorable]

loan . . . suggests that its value, properly calculated, would be

far less than its face amount” and remanding for a correct

determination of its value).

CONCLUSION

White Eagle’s convictions on Counts I, II, IV, and V are

REVERSED. Her convictions on Counts III and VI are

AFFIRMED. The matter is REMANDED to the district

court for further sentencing proceedings consistent with this

opinion.