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The Honorable Karen E. Schreier, Chief Judge, United States District Court for

the District of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-1286

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United States of America,

Appellee,

v.

Eileen Janis,

Appellant.

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Appeal from the United States

District Court for the

District of South Dakota.

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Submitted: November 12, 2008

 Filed: February 26, 2009 

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Before MURPHY, RILEY and GRUENDER, Circuit Judges.

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GRUENDER, Circuit Judge.

Following an investigation by the United States Department of the Interior into

alleged criminal activity concerning the Oglala Sioux Tribe’s employee pay-advance

program, Eileen Janis was charged with and convicted of theft or embezzlement from

an Indian tribal organization in violation of 18 U.S.C. § 1163. Janis appeals her

conviction, arguing that the district court1

 erred in denying her motion for a judgment
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of acquittal or a new trial because the Government’s evidence was insufficient to

sustain her conviction. For the reasons discussed below, we affirm.

I. BACKGROUND

From January 2004 to December 2004, Eileen Janis worked in the

administrative offices of the Oglala Sioux Tribe (the “Tribe”) as the Tribe’s finance

committee coordinator. The finance committee coordinator was politically appointed

and served at the pleasure of the Tribe’s elected leaders. While Janis served as the

finance committee coordinator, Kim Colhoff worked as the Tribe’s payroll supervisor

and David Rabbit was the Tribe’s treasurer.

The Tribe managed its internal finances according to policies set forth in the

“Oglala Sioux Tribe’s Finance Management Manual” (the “Finance Manual”). Under

the Finance Manual, the Tribe paid its employees biweekly. To accommodate

employee emergencies, the Finance Manual included a “pay-advance” program:

06.702 SALARY ADVANCES

Employees requesting a salary advance must have 40 hours accrued

payroll from their respective program. Employees may request from the

Treasurer a salary advance on an emergency basis up to the net amount

of the employee’s regular biweekly paycheck. All such salary advances

must be submitted through the Treasurer. All such salary advances are

handled on an individual basis. The Treasurer’s determination is final.

Salary advances shall be deducted from the next pay period[.]

GENERAL POLICIES REGARDING SALARY ADVANCES

INCLUDE THE FOLLOWING:

1. Employees are allowed only two salary advances per year.

Employee fills out a salary advance form signed by their

supervisor. 
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2. Program Director submits approved form to the Treasurer for final

approval/disapproval.

3. If approved, Treasurer submits to Payroll Supervisor for

processing.

4. Payroll will verify amount of salary advance.

Because of their positions, Janis, Rabbit and Colhoff were familiar with the

contents of the Finance Manual, including the details of the pay-advance program and

its restrictions. Throughout 2004, however, Janis, Rabbit and Colhoff requested,

approved and issued pay-advances to themselves and others in violation of the twopay-advances-per-year limitation and the requirement that pay-advances be deducted

from the following pay period. In total, Janis requested and received ninety-nine payadvances during the twenty-five pay periods in 2004 totaling more than $71,720, an

amount well in excess of the $37,512 that she earned for the same time frame.

In August 2004, Tribe comptroller Dean Patton learned of allegations that some

Tribe employees were abusing the pay-advance system by taking more than the

allowed two pay-advances per year and taking more money in pay-advances than the

Tribe could deduct from their paychecks in the next pay period. Patton investigated

the allegations and found that Janis, Rabbit, Colhoff and three elected Tribe leaders

had each violated these pay-advance policies several times. Patton confronted Rabbit

and Colhoff about their violations, but he decided not to raise the issue with others

because he feared that the Tribe leaders would retaliate against him. After speaking

with Patton, Colhoff confronted Janis concerning Janis’s violations of the payadvance policies. Specifically, Colhoff informed Janis that by that point in 2004,

Janis had received $17,000 more in pay-advances than had been withheld from her

biweekly paychecks. Colhoff also told Janis that she faced dim prospects for

continued employment because she was a political appointee aligned with the Tribe

leaders who were expected to lose the upcoming election. Janis told Colhoff to “mind

her own business.”
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On November 2, 2004, the Tribe elected new leaders. Following the election,

Janis increased the frequency with which she requested and received pay-advances,

taking fifteen pay-advances in the next six weeks. Meanwhile, Patton informed the

new Tribe president, Cecilia Fire Thunder, of the extent to which some Tribe

employees, including Janis, were violating pay-advance policies. On December 15,

2004, Fire Thunder terminated Janis’s employment with the Tribe. At the time of her

termination, Janis still owed the Tribe $22,140 for pay-advances that she had not

repaid.

Fire Thunder referred Janis, Rabbit and Colhoff’s conduct to law enforcement

for investigation. On February 5, 2007, Special Agent Anthony Hoben of the United

States Department of the Interior interviewed Janis about her use of the Tribe’s payadvance program. Janis stated that she was aware of the policies prohibiting

employees from taking more than two pay-advances per year or taking pay-advances

that could not be deducted from the next paycheck. Janis also stated that she took

more advances than most employees and that she believed her conduct was justified

because other Tribe leaders also violated the pay-advance program’s policies.

On April 19, 2007, a federal grand jury returned a one-count indictment

charging Janis, Rabbit and Colhoff with theft or embezzlement from an Indian tribal

organization in violation of 18 U.S.C. § 1163. Rabbit and Colhoff pled guilty, but

Janis entered a plea of not guilty and proceeded to trial. At trial, the court instructed

the jury on the elements of a § 1163 violation and defined the relevant statutory terms

“embezzle,” “steal,” “convert,” “knowingly,” and “misapply.” The jury returned a

general verdict of guilty. Janis moved for a judgment of acquittal or a new trial, but

the district court denied her motion.
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II. DISCUSSION

Janis appeals the district court’s denial of her motion for a judgment of acquittal

or a new trial. We review a denial of a motion for a judgment of acquittal de novo,

and we reverse “only if no reasonable jury could have found the accused guilty.”

United States v. Flying By, 511 F.3d 773, 776 (8th Cir. 2007). In reviewing this issue,

“we view the evidence in the light most favorable to the guilty verdict, granting all

reasonable inferences that are supported by that evidence.” United States v. Milk, 447

F.3d 593, 598 (8th Cir. 2006). We review a denial of a motion for a new trial for an

abuse of discretion, recognizing that a new trial motion should only be granted where

“the interest of justice so requires.” United States v. Dodd, 391 F.3d 930, 934 (8th

Cir. 2004) (quoting Fed. R. Crim. P. 33). “The jury’s verdict must be allowed to stand

unless the evidence weighs heavily enough against the verdict such that a miscarriage

of justice may have occurred.” United States v. Garcia-Hernandez, 530 F.3d 657,

663-64 (8th Cir. 2008) (quoting United States v. Sturdivant, 513 F.3d 795, 802 (8th

Cir. 2008)).

Janis argues that the district court erred in denying her motion for a judgment

of acquittal because the Government’s evidence is insufficient to prove that she

committed a wrongful act under § 1163; namely embezzling, stealing, knowingly

converting or willfully misapplying tribal property. See 18 U.S.C. § 1163 (stating that

an individual who “embezzles, steals, knowingly converts to his use or the use of

another, willfully misapplies, or willfully permits to be misapplied, any of the moneys,

funds, credits, goods, assets, or other property belonging to any Indian tribal

organization . . . [s]hall be fined . . . or imprisoned not more than five years, or both”

if the value of the property is greater than $1,000). Janis contends that Rabbit, as

treasurer, had the full authority to approve her requests and that she gained legal title

to pay-advance funds that Rabbit approved, thereby making it impossible for her to

commit a wrongful act. Janis also argues that the Government conceded that she did

not commit a wrongful act based on the Government’s statements in its closing
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argument that “we don’t think she did steal [the money]” and that Janis’s pay-advance

requests were “lawful.”

Because the district court submitted to the jury multiple grounds for conviction

under § 1163 and because the jury returned a general verdict of guilty, we must affirm

Janis’s conviction provided that “there is sufficient evidence to support at least one

of the grounds of conviction.” See United States v. Dreamer, 88 F.3d 655, 658 (8th

Cir. 1996); see also United States v. Wilkinson, 124 F.3d 971, 976 (8th Cir. 1997)

(“[W]hen a jury returns a guilty verdict on an indictment charging several acts in the

conjunctive, . . . the verdict stands if the evidence is sufficient with respect to any one

of the acts charged.” (quoting Turner v. United States, 396 U.S. 398, 420 (1970))).

Here, we choose to analyze Janis’s sufficiency arguments with respect to the

conversion charge, recognizing that a “conversion” under § 1163 is a “knowing and

unauthorized exercise of dominion over another’s property.” United States v. Big

Crow, 327 F.3d 685, 689 (8th Cir. 2003) (quoting Wilkinson, 124 F.3d at 977). If the

evidence is sufficient to sustain Janis’s conviction for conversion, then we need not

determine whether there was sufficient evidence to prove that Janis embezzled, stole,

or willfully misapplied tribal property. See Wilkinson, 124 F.3d at 976; Dreamer, 88

F.3d at 658.

Janis’s arguments concerning her motion for a judgment of acquittal fail to

persuade us for at least three reasons. First, the record shows that the Government’s

evidence was sufficient to support Janis’s conviction on a conversion theory. See

Dreamer, 88 F.3d at 658. In particular, the Government presented sufficient evidence

that Janis’s receipt and retention of pay-advance funds in violation of the Tribe’s payadvance policies constituted a knowing and unauthorized exercise of dominion over

the Tribe’s property, which satisfied the definition of a conversion under § 1163. See

Big Crow, 327 F.3d at 689. Agent Hoben’s testimony concerning his interview with

Janis demonstrated that she knew of the Tribe’s pay-advance restrictions—that

employees were only permitted to take two pay-advances per year and that employees
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were only authorized to take pay-advances that could be deducted from the

employee’s next pay period—when she requested and received her pay-advances in

2004. Despite her knowledge of the Tribe’s pay-advance restrictions, the Government

proved that Janis requested, received and retained ninety-nine pay-advances in 2004

worth $71,720, which was nearly double her annual salary. Even after the Tribe’s

elections, when Janis knew that her political appointment would likely be terminated,

Janis took fifteen pay-advances in a six-week period, further violating the payadvance restrictions. Viewing this evidence in the light most favorable to the jury’s

verdict, we find that a reasonable jury could have found Janis guilty of converting the

Tribe’s funds in violation of § 1163.

Second, we disagree with Janis’s contention that legal title to the pay-advance

funds necessarily passed to Janis by virtue of Rabbit’s approval of each pay-advance

request based on his authority as treasurer. Janis’s argument relies on the Finance

Manual provision stating that “[t]he Treasurer’s determination is final.” This

statement, however, is followed by provisions requiring that “[s]alary advances shall

be deducted from the next pay period” and that “[e]mployees are allowed only two

salary advances per year.” Janis’s theory—that Rabbit could waive the program’s

restrictions because the treasurer’s “determination is final”—is arguably plausible.

But the Government’s theory—that the treasurer’s final determination was to be

informed by and subject to the program’s restrictions—is more reasonable. This is

also supported by Rabbit’s testimony that he knew that receiving pay-advance checks

in violation of the restrictions was “wrong.” Because we view the evidence in the

light most favorable to the guilty verdict and grant all reasonable inferences that are

supported by that evidence, we conclude that a reasonable jury could find that

Rabbit’s approval of Janis’s pay-advance requests was subject to the pay-advance

program’s restrictions. See United States v. Mack, 343 F.3d 929, 934 (8th Cir. 2003)

(holding that “[w]e cannot reject a jury’s conclusions” where the evidence supports

“two contradictory, albeit reasonable, inferences”). Thus, legal title to the payadvance funds did not pass to Janis. See United States v. Irvin, 67 F.3d 670, 672 (8th
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In her opening brief, Janis claimed that a new trial was necessary because her

rights were prejudiced by the Government’s closing argument, where it argued that

Janis did not intend to repay the advanced funds. However, Janis’s counsel

abandoned this claim during oral argument, and we typically do not address

abandoned claims. See Wigg v. Sioux Falls Sch. Dist. 49-5, 382 F.3d 807, 812 n.2

(8th Cir. 2004). We note, however, that even if this issue had not been abandoned, it

would not affect our analysis. Janis’s intent to deprive the Tribe of its property was

properly at issue during the trial based upon the mens rea requirement attendant to

embezzling, stealing, knowingly converting, or willfully misapplying tribal property

under § 1163, and thus it was a proper subject for the Government’s closing argument.

See United States v. Schnurstein, 977 F.2d 449, 454 (8th Cir. 1992) (holding that a

district court’s denial of a new trial motion was not an abuse of discretion where the

Government’s comments at closing argument concerned “one of the elements of the

offenses charged”).

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Cir. 1995) (“[The] property interest in the [converted] funds does not pass to the

unintended recipient.”).

Third, we do not agree with Janis’s contention that the Government’s

statements in its closing argument constituted an admission that Janis did not convert

the Tribe’s funds. When the statements are read in the context of the Government’s

entire closing argument, it is clear that the Government was merely elaborating on the

differences between the definitions of stealing, embezzlement and conversion under

§ 1163 and articulating its position that Janis embezzled or converted the funds rather

than stole them.

Because a reasonable jury could have found Janis guilty of conversion under

§ 1163, we conclude that the district court did not err in denying Janis’s motion for

a judgment of acquittal. See Flying By, 511 F.3d 773, 776 (8th Cir. 2007). We also

find that the district court did not abuse its discretion in denying Janis’s motion for a

new trial. We do not find that the evidence weighs heavily against the guilty verdict

such that a miscarriage of justice may have occurred. See Garcia-Hernandez, 530

F.3d at 663-64.2
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III. CONCLUSION

For the foregoing reasons, we affirm Janis’s conviction.

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