F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

W I L L I A M A U B R

E Y , Defendant-Appellant

. N o. 13-10510

D.C. No. 2:09-cr-00206- KJ D-PAL -1

OPI NI ON

A ppeal from the United States District Court for the District of Nevada K ent J . Dawson, Senior District J u dg e, Presiding

Arg ued and Submitted May 11, 2015—San F rancisco, California

F iled September 8, 2015

B efore: Diarmuid F

. O’Scannlain, Sandra S. I kuta, and N. Randy

Smith, Circuit J udg es.

Opinion by

J udg e N.R. SmithU N I T E D S T A T E S V

. A U

B R E Y 2

SUMMARY *

Crim inal Law

The panel affirmed a conviction a nd sentence for t wo counts of conversion a

n d misapplication of f

u n d s from a tribal org aniz ation, in violation of 18 U.S.C. § 1163.

The d efendant is a contractor who o wned a controlling interest in, and manag ed and controll e d, two c onstruction companies. His conviction resulted from his involvement in projects he performed for the Navajo Nation.

The p anel held that for pu r p o ses of § 1163, funds p aid from a n I ndian tribal org aniz ation to a contractor c ontinue to be “property belong ing to any I ndian tribal org aniz ation,” a s long as the tribal org aniz ation maintains sufficient supervision a

nd control of disbursed funds and their ultimate

use. The panel held that a reasonable jury could find ( a) that the f u n d s misappropriated or converted by the defendant belong ed to a tribal org aniz ation, even if the f u n d s were

co n sidered reimbursement for work already completed; a nd (b) that the Navajo H o u sing Authority had sufficient supervision and c ontrol o f the funds a llocated to it by the U.S. Department of Housing a nd Urban Development p ursuant to the Native American H ousing Assistance and SelfDetermina tion Act. The panel concluded that there was suff i c ient evidence for a rational jury to conclude bey ond a reasonable doubt that the defendant was misappropriating the tribal funds.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. A U

B R E Y 3

The panel held that t h e d i s t rict court did not err b y not requiring a prosecution w itness, a forensic a u d itor with HUD’s Office of I nspector General, to be certif i e d a s an

ex p ert; and that the district court did not abuse its discretion by allowing the witness’s summary charts to be admitted into evidence. The panel held that the d istrict court did not err in instructing the jury

.

The panel held th a t t h e district court did not err in

a p p ly ing sentence enhancements f or loss more th a n $1,000,000 but not more than $2,500,000 and abuse of trust.

COUNSEL

Michael J

. Kennedy (arg

u ed), Chief Assistant F e deral Public Defender, Rene Valladares, F ederal Public D e fender, Reno, Nevada, for Defendant-Appellant.

Scott A.C. Meisler (arg

ued), Sung -Hee Suh, D ep u t y Assistant Attorney General, a

nd L eslie R. Caldwell, Assistant Attorney General, United State s D e p artment of J u stice, Criminal Di v ision, Appellate Section, W ashing ton, D.C.; Daniel G

. B og den, United States Attorney
, E li z abeth O lson White, Appellate Chief, Kathry n Newman and A d am McMeen F lake, A ssistant United States Attorney s, L as Veg as, Nevada, for Plaintiff-Appellee.U N I T E D S T A T E S V

. A U

B R E Y 4

OP INION

N.R. SMI TH, Circuit J udg e :

F or purposes o f 1 8 U .S.C. § 1163, funds paid f rom an I ndian tribal org aniz atio n to a contractor continue to be “property b e long ing to a ny I ndian tribal org aniz ati o n,” a s long as the tribal org aniz a tion maintains suff i cient supervision a

nd control of disbursed funds and their ultimate

use. According ly

, we reject W illiam Aubrey ’ s contention that the evidence presented a t h is trial was insufficient to prove that he converted or misused property belong ing to an I ndian tribal orga n i z a tion in violation o f 18 U.S.C. § 1163. W e also deny Aubrey ’ s other challeng es to his c onviction a nd sentencing

.

BACK G ROUND 1

A. Overview of the federal f unding of tribal housing projects

Under the Native American Housing Assistance and SelfDetermination Act, 25 U

. S

. C

. § § 4 1 0 1

– 4 2 1 2 ( “ N A H ASDA”), the U.S. Depar t m e nt of Housing and Urban Development (“HUD”) allocates federal money to I ndian tribes to fund the construction a

n d m a i n tenance of affordable housing on I ndian reservations. HUD evaluates a tribe’s specific needs and then

1 A u b rey co n ten d s th at th ere w as in su f f icien t ev id en ce th at h e co n v erted

o r m isap p lied h o u sin g g ran t f u n d s th at b elo n g ed to an In d ian trib al

o r g a n i z a tio n o r w ere en tru s ted to th at org an izatio n ’ s ag en ts. T h eref o re,

w e p resen t t

h e f a c t s “i n th e lig h t m o st f av o rab le to th e p ro secu tio n .” Un ited S ta tes v. Hicks , 2 1 7 F.3 d 1 0 3 8 , 1 0 4 1 (9 th Cir. 2 0 0 0 ).U N I T E D S T A T E S V

. A U

B R E Y 5

a l l o c ates money to the tribe, such funds are then termed a block g rant.

The N avajo Nation r eceives t h e larg est a mount o f NAHASDA block g rant funds in the c o u n t r y

. The Navajo Housing Authority (“NHA”)

, t h e Navajo tribal org aniz ation des i gn at e d to receive the block g rant funds from H UD, 2 received approx imately n i n e ty million dollars annually between the y ears of 2000 and 2 0 0 4

. T o be elig ible to receive NAHASDA block g rant funds, the NHA must file an annual I ndian Housing Plan to specify how the f u n d s a re to be used. Once the NHA’s Housing Plan i s a p p roved b y HUD, the NAHASDA funds are then allocated to the NHA. However, even after the f unds are a llocated, they are not immediately delivered to the NHA. I n stead, the allocated funds a re only released by HUD when t h e NH A submits requests, accompanied by support i n g documentation, that elig ible w ork u nder the Housing Plan h a s been performed. F or ex ample, a fter a roofer completes work on houses under the NHA’s Housing Plan, the roofer subm its a bill (either directly or throug h a contractor) to the NHA. The NHA then requisitions the funds from HUD, who releases the funds to the NHA in the form o f a draw. T h ose funds must then be used to pay the subcontracto r wh o se work supported the requisition ( in this ex ample, the roofer). The funds cannot be used for other purposes. I n short, NAHASDA funds must be spent s o l e l y on work that is (a) elig ible under the statute, (b) a pproved under the I ndian H ousing Plan, and (c) verified

as completed by the responsible tribal org aniz ation. 25

2 T rib al o rg an izatio n s , su ch as th e NHA
, au th o rized b y tr i b a l
g o v ern m en ts to receiv e g ran t fu n d s an d to p ro v id e assistan ce f or af f o rd ab le h o u sin g f

o r In d ian s are k

n o w n , u n d er NA HA SDA
, as “ trib ally d esig n ated

h o u sin g en tities.” 2 5 U.S.C. § 4 1 03 (2 2 ).U N I T E D S T A T E S V

. A U

B R E Y 6

U.S.C. § 4111(g ) (“[ A] mounts provided under a g r ant under this section may be used only for affordable housing activities under subchapter I I of this c h apter that are consistent with an I ndian housing plan ap p r o v e d u nder section 4113 o f this title.”).

NHA d oes not undertake all housing p rojects on the Navajo N a t ion Reservation o n its own. B ecause of the Reservation’s s i z e and political diversity (the Reservation

c o v e rs over 25,000 square miles and is divided into 1 1 0 chapters, which are comparable to county g overnments), the NHA deleg ated responsibility for r equisitioning a nd d i s b ursing NAHASDA funds to a number of sub-g r antees. One such sub

- gr a n tee was the F ort Defiance Housing C orporation (“F DHC”). The F DHC was a non-p r o f i t org aniz ation (formed u nder the laws of the Navajo Nation) and was deleg ated responsibility for the a d m i n istration o f NAHASDA funds to provide housing to the N a v ajo people. F DHC sig n ed f

ormal sub-g rant ag r eements with NHA, pledg ing t o adhere to the annual I n dian Housing Plans submitted b y NHA and also to abide by the g overning federal and N avajo Nation laws a nd reg ulations. I n i t s sub-g rant ag reement, F DHC understood and ag reed that NAHA SDA block g rant funds would be allotted “on a cost reimbursement basis” throug h HUD’s line-of-credit sy stem. To obtain N A H ASDA funds, F DHC had to submit a standard requisition form (supported by r elevant docume n t s such a s bills and invoices), identify ing the funding -elig ible work performed during the relevant period, r equesting p a y ment, and ag reeing to r e t u rn any ex cess funds. NHA inspectors

w ould then v erify that the claimed work had actual l y b e e n completed a

nd approve F DHC’s request. O nce the request

was approved, HUD would release the NAHASDA funds to NHA, which would issue a check to F DHC. Once the fundsU N I T E D S T A T E S V

. A U

B R E Y 7

were in F DHC’s possession, it had a fiduciary duty to manag e the funds and to pay them to the party who had performed the work that formed the basis for the requisition.

B. FDHC and Lodgebuilder’s Relationship

W illiam Aubrey is a contractor who owned a controlling interest in, and actively manag ed and c ontrolled, two construction companies: L odge b uilder, I nc., a Nevada forprofit c orpo r a t ion, and L odg ebuilder Manag ement, I nc., a Montana c orporation (collectively

, “L odg ebuilder”). Aubrey has h ad a long h istory of build i n g houses on I ndian lands throug hout the country

. Aubrey ’s conviction, at issue in this appeal, r e sulted from his involvement in projects he performed for the Navajo Nation from 2000 to 2004.

B e tween 1996 a

nd 2004, L odg ebuilder and F D H C e n t e r e d into a series of development, constructi o n , and consulting
ag reements for various p rojects throug hout the N a v a jo Nation Reservation. I n fact, L o dg ebuilder’s and FDHC’s relationship became so intertwine d t hat F DHC’s Chief Operations O fficer, Marcus Tulley

, t e s t i f ied at trial that A u b r e y , a s the person m a n a gi n g a n d co n t r o l l i n g L odg ebuilder, had the real authority over FD H C’s f inances and financial manag em e n t

. B y mid-2002, F DHC’s rela t i o n s hip with L o dg ebuilder h ad raised red flag s with HUD’s S o u t h west O ffice of Native American Prog rams (“SW ONAP”). SW O NAP is s u e d a r eport in Aug ust 2002 addressing various issues a r ising from that rela t i o n ship, ultimately finding that F D HC was in violat i o n of fiscal controls and was unable to substantiate t hat NAHASDA funds were being

used solely

for authoriz ed purposes.U N I T E D S T A T E S V

. A U

B R E Y 8

Notwithstanding those finding s, F DHC e ntered i n to a renewed five-y ear ag reement (the “Consultant Ag reement”)

w i th L odg ebuilder in October 2002. The Consult a n t Ag reement stated that L odg ebuilder would provide construction manag ement services f or F DHC’s projects, including preparing the m o nthly p ay ment requests for
approva l by F DHC and NHA, distributing the NAHASDA funds awarded to F DHC to the suppliers and contractors w ho performed the work, and securing the third-party funding needed to cover the full cost o f the p r o j e c t s

. As for L odg ebuilder’s own compensation, the ag reement specified that L odg ebuilder would b e paid like the other companies that L odg ebuilder was reg ulating –on a line-item basis in accordance with NAHASDA cost g uidelines.

C. The Chilchinbeto project

Two months after entering into the Consultant Ag reement, N HA submitted its 2003 I ndian Housing Plan to HUD. The I ndian Housing Plan requested $9.374 million in NAHASDA f

unds for a housing d evelopment to be built in Chilchinbeto, Ariz o na during the 2 003 fiscal y e a r. T h is
amount w as in addition to $2.26 million in NAHASDA g rant funds that had been al l ocated during the 2002 f iscal y ear to g et the p roject started. I n May 2003, the F DHC entered into

a sub-g rant ag reement w ith NHA whereby the F DHC ag reed
to build 90 units at Chilchinbeto, utiliz ing the $11. 6 million in allocated NAHASDA funds. As directed by the Consultant Ag reement, F DHC deleg ated the manag ement of the Chilchinbeto project to L odge b u ilder (and thereby to Aubrey ).

C onstruction at Chilchinbeto beg an in the summer o f 2003. L odg ebuilder prepared monthly requisition requ e stsU N I T E D S T A T E S V

. A U

B R E Y 9

that F D HC sig ned a

nd submitted to NHA. NHA then verified that the work had been completed, drew funds from its HUD line of credit, and issued c hecks to F D HC. F DHC then issued checks to L odg ebuilder, which Aubrey endors e d a nd deposited into his joint money market account that he shared with his w ife, B renda Todd. Throug h the relevant periods o f time, the NHA received $9,593,000 in NAHASDA funds, o f which $9,164,573 was deposited into Aubrey ’s bank account.

Aubrey used his money market account both for professional p ay

ments on the Chilch i n b e t o job and for personal ex penses. 3 Thus, once the funds were deposited into Aubrey ’s account, it became ex tremely d ifficult to trace h ow he was u sing the NAHASDA funds. He also transferred
money from the joint a ccount to another personal account to finance g a mbling debts and buy jewelry

.

The comming ling of N AHASDA f unds with person al finances did not seem to prevent Aubrey fr o m p a y i ng the subcontractors doing the work at Chilchinb e t o d u ring the early phases of the job. However, st a r t i n g in the spring o f 2004, Aubrey ’s long time employ ee, Dale Rowto n , heard complaints that contractors were not being paid for the work they had completed. After h earing the comp l a ints, Rowton asked Aubrey if the cont r a c t o rs could be paid. Aubrey told Rowton not to release checks, because NHA h a d n ot p aid L odg ebuilder on the requested draws. However, contrary to Aubrey ’s s tatement to Rowton, NHA had ( with a few

ex c e ptions) p aid all elig ible work ex penses listed in F DHC’s requisitions totaling more than $9.1 million thro u gh J u ne 2004. NHA’s pay

ments w er e f

o r completed work, such a s

3 B o t h p arties a g r ee th at A u

b rey w as n o t leg ally o b lig ated to k eep NA HA SDA

f u n d s sep arate f

ro m h is o th er f

u n d s.U N I T E D S T A T E S V

. A U

B R E Y 10

site electrical work

, f

l ooring

, and stucco w ork; however, Aubrey did not pay

many of these companies.

The g overnment points to the ex perience of F our States Electric as its clearest e x a m ple of Aubrey ’s failure to use NAHASDA requisitioned f unds f or their desig nated purpose. I n M a r ch 2004, F o ur States contacted Rowton to bid o n electrical work at Chilc h i n b e to. Rowton accepted F our States’s bid and sig n ed a contract with the company on behalf of F DHC. F o ur States performed the ag reed-upon work i n March and April 2 0 0 4 a nd submitted timely bills to F DHC. The ensuing requisitions reflected F o ur States’s performance and requested the contracted bid of a total o f $ 2 0 0
, 000 in NAHASDA funds for site electrical work. On each occasion, NHA issued checks c o n t a ining the requested amounts to F DHC, which passed the funds to Aub rey

. Aubrey

, in turn, deposited those f

unds at his bank and moved them among his various accounts. Aubrey used the funds to pay personal

ex p enses, including pay

ments to two ca sinos totaling more than $ 1 00,000 in May 2004 and another $50,000 pay ment to the Paris Casino in J u n e 2 004. Yet neither F DHC nor Aubrey (on F DHC’s behalf) paid F our States Electric.

After learning that F DHC failed to pay vendors a nd
contractors at Ch i l chinbeto, NHA terminated F DHC’s subg rant ag reement and in v e stig ated the whereabouts of the NAHASDA funds. W hen the fi n an c e officials were a ble to review L odg e builder’s finances, NHA confirmed that Aubrey had failed to pay numerous contractors and vendors f or their work a t Chilchinbeto and could n ot verif y a l l o f L odg ebuilder’s c laimed ex penditures a s permissi b l e

. An audit (conducted in the course of F DHC’ s s u bsequent b a n k r u p t cy ) determined that L odg ebuilder had received $11.6 million in N AHASDA funds f o r t h e Chilchinbeto project inU N I T E D S T A T E S V

. A U

B R E Y 11

fiscal y ears 2002 and 2003, but that L odg ebuilder continued
to owe $1,562,921 to vendors who had worked on the project. The audit a lso co n c l u d ed that, because L odg ebuilder h ad received $ 11.6 million in N AHASDA funds but could o n ly verify $ 7,098,659 in ex pe n s es for the project, L odg ebuilder should have had $4,501,341 in g r a nt funds from which it could have paid the subcontractors.

D. Aubrey’s Trial and Sentencing

I n December 201 2
, a g rand jury returned a second superseding indict m e n t charg ing Aubrey with (among other counts) two c ounts (Counts F our and F ive) of conversion a nd misapplication of f

unds from a tribal org aniz ation, in violation of 18 U.S.C. § 1163.

Aubrey ’s trial b eg an on April 9, 2013, and continued for fifteen day s. O ne of the p rosecution witnesses was J ames H oog o ian, a forensic auditor w ith the HUD’s Office o f I nspector General. Hoog o ian introduce d a s e ries of charts reflecting the movement of funds a mong Aubrey ’ s business and personal accounts, following each NHA requisition
pay ment between J uly 2003 and J u ne 2004. Hoog o ian
p r e p ared the charts by r eviewing multiple bankers’ box e s worth of documents and tracking the series of transactions that consume d each deposit. W h en questioned by the
prosecu t o r , Hoog oian a g reed that he followed a procedure “similar in concept” to the “l a s t -in-first-out” accounting method. Aubrey

objected to Hoog oian’s testimony

, arg uing that H oog oian was testify ing as an ex pert even thoug h he h ad
not been certified. The g overnment responded that Hoog o ian

was p r o viding foundation for the charts to be introduced a s summary e x hibits unde r Fe deral Rule of Evidence 1006, which allows parties to “use a summary , chart, or calculationU N I T E D S T A T E S V

. A U

B R E Y 12

t o p r ove the content of voluminous writing s

. . . that can n o t be convenien t l y e x amined in court.” The district court

a d mitted the ex hibits over Aubrey ’s o bjection, and allo w e d A ubrey a continuing objection to the testimony

. The co u r t also denied Aubrey ’s subsequent motion for a mistrial.

After the g overnm e n t rested its case, Aubrey moved for

a judg ment of acquittal on Counts F o ur and F ive pursuant to F ederal Rule of Criminal Procedure 29(a). T he district court subsequently

denied the motion.

At the close of th e trial, Aubrey objected to two of the court’s proposed jury instructions. Proposed J ury I nstruction No. F ifteen, which addressed Count F our, outlined in part:

I n order to convict defendant A UB REY o f this offense, the g overnment must prove e ach of the following elements bey ond a reasonable doubt:

First
, that during the period f rom May 20, 2004, to on or a b o u t J une 8, 2004, defendant Aubrey knowing l y and wilfully converted to his own use or wilfully misapplied money o r funds; and

Second

, that those funds or that money be long ed to an I ndian tribal o rg aniz ation o r

was intrusted to the custody or c a r e of an ag ent of an I

ndian tribal org aniz ation.

Proposed J ury I nstruction No. Six teen, which was very similar, outlined in part:U N I T E D S T A T E S V

. A U

B R E Y 13

I n order to convict defendant A UB REY o f
t h e offense charg ed in Count F ive, t h e g overnment must prove each of the following elements bey o nd a reasonable doubt:

First
, t h a t on or about J une 24, 2004, defendant A UB REY knowing ly and willfully embez z led stole, converted to his own use o r misapplied money

or funds; and

Second

, that those funds or that money belong ed t o an I ndian tribal o rg aniz ation o r

w a s intrusted to the custody or care of a n ag ent of an I

ndian tribal org aniz ation.

Aubrey objected to these instructions o n the basis t h at t he instruction split the crime into two elements rather than three,

as Aubrey had requested in his proposed instructions. W h en objecting

, Au brey ’s counsel e x plained his o bjection, reasoning :

[ T] he objection there would b e that the

. . . first element is the specific intent crimes.

. . . [ I ] n this case it’s either c onversion o r misapplication. T hen not every conversion o r misapplication is a crime u n der the statute. I t has to be the money

or funds belong ing to an I ndian Tribal Org aniz ation. A n d then the third element is the jury has to find as a matter of fact that it is a

n I ndian T r ibal Org aniz ation. So that’s why

I set it out in three elements.

Thus, Aubrey ’s requested jury instruc t ions read, in relevant part:U N I T E D S T A T E S V

. A U

B R E Y 14

S e c o nd, those monies and funds belong ed t o the Navajo H o using Authority and its

s u b g r a n t e e , F o r t D e f i a n c e H o u s i n g Corporation, a s ag ents of the Navajo Nation, rather th an belong ed to d efendant W illiam Aubrey or someone else; and

Third, the Navajo Housing Authority a nd its

s u b g r a n t e e F o r t D e f i a n c e H o u s i n g Corporation w ere I ndian tribal org aniz ations.

The d istrict court den i e d Aubrey ’s objection, reasoning that “the Court believes that the jury is adequately instructed with the combination instruction that includes a definition o f I ndian Tribal Org aniz ation later o n i n the instructions.” According ly

, the court g ave its Proposed I n s t r uctions N os. F ifteen and Six teen. After delib e r a t i o n, the jury f ound Aubrey g u ilty on Counts F o ur and F ive. Aubrey renewed his Rule 29 motion, which the district court ag ain denied.

O n September 10, 2013, the district court sentenc e d Aubrey to imprisonment f or f ifty -one months, to be followed by three y ears of supervised release. I n calculating Aubrey ’s sentence, the court a p plied a six teen-level increase pursuant to the U n i t ed States Sentencing G uidelines Manual (“U.S.S.G.”) § 2B 1.1(b ) ( 1 ) (I ) (2012) for loss more than $1,000, 0 0 0 b ut not more than $2,500,000, and a two-level enhancement for abuse of trust pursuant to U.S.S.G. § 3B 1.3. Aubrey appeals.

D ISCUSSION

Aubrey presents four challeng es to his conviction a nd
sentence. F irst, A ubrey a

rg ues that the district court erred b yU N I T E D S T A T E S V

. A U

B R E Y 15

deny ing his motion for judg ment of acquittal, becau se (a) pay ments for verified, certi f i e d

, and approved construction progr e ss do not belong to an I ndian tribal
org aniz ation o r are not held in trust after they a re paid out, and (b) there was insufficient evidence that Aubrey converted

or misapplied housing g ra n t f u nds. Second, Aubrey arg ues t h a t the district c o urt erred by admitting Hoog oian’ s testimony as summary testimony an d b y admitting the
summary e x hib i t s, because he was n ot certified as a n ex pert witness. T hird, Aubrey arg ues that the district court erred in its jury instructions by failing to adequately g uide the jury ’s deliberations and omitting Aubrey ’s proposed theory o f defense lang uag e. F ourth, Aubrey arg ues that t h e district
court erred at sentencing by apply ing both t h e s i x teen a nd two-level sentencing increases. W e address each contention in turn.

I.

Aubrey arg ues that the g overnment f ailed to prove all o f the elements of 18 U.S.C. § 1163. Se c t i o n 1 1 6 3 allows for the conviction of a person who:

embez z les, steals, knowing ly c onve rt s to his

use or the use of another, willfully misapplies,

or w illfully permits to be m i s applied, any o f the mon ey s , f

unds, credits, g oods, assets, o r other property belong ing to any I n d i an tribal
org aniz ation or intrusted to the custody o r

care of any officer, employ ee, or ag e n t of an I ndian tribal org aniz ation[ .]

Thus, the g overnment had to prove (1) Aubrey knowing ly a nd willfully embez z led, stole, c o n v e rted to his own use, o rU N I T E D S T A T E S V

. A U

B R E Y 16

misapplied money or funds and (2) those funds or that money belong ed to a

n I n dian tribal org aniz ation or was intrusted to the custody or care o f a n ag e n t of an I ndian tribal
org aniz ation.

W e “ rev i e w de novo the district court’s denial of a F ederal Rule of Criminal Procedure 29 motion for judg ment of acquittal.” United States v. W iggan
, 700 F .3d 1204, 1210 (9th Cir. 2012).

A. Funds belonging to any Indian Tribal Organization

A u b r ey a rg ues that the money he received from FD H C ceased being funds “belong ing to any I ndian tribal
org aniz ation or intrusted to the custody or care of any officer, employ e e, or ag ent o f an I ndian tribal o rg aniz ation” when the funds w ere disbursed to h im. According to Aubrey

, because the d isbursements were made after work had been completed and verified by the NHA
, t h ose funds constituted reimbursement for the work he had already completed; the tribe could not accept c ompleted work a n d also continue to own the funds it used to pay for the work.

Althoug h creative, Aubrey ’s contention is not supported by leg al authority

. 4 I nstead, tribal disbursements c ontinue to belong to the NHA, a tribal org aniz ation, for the purposes o f 18 U.S.C. § 1 163, because the tribe ex ercises supervision a nd control over the funds a

n d their ultimate use even a f t e r t h e y have been disbursed.

4 A u b rey d o es n o t c i t e to an y cases, Nin th Circu it o r o th erw i s e, to

su p p o rt th is arg u

m en t.U N I T E D S T A T E S V

. A U

B R E Y 17

W e have n ot previously d efined what it means for funds
to “belong [ ] t o any I ndian tribal org a niz ation.” All of our

cases dealing with § 1163 have either d ealt w ith situations where a tribal official (who was intrusted funds as an ag e nt o f the tribe) embez zled those fun d s , see, e.g. , United States v

. Coin
, 753 F .2d 1510, 1510–11 (9th Cir. 1985); U nited States

v. Brame
, 657 F .2d 1090, 1091 (9th Cir. 1981), o r where the defendant actually stole tribal proper t y , see United S tates v

. Tidwell

, 191 F .3d 976, 978–79 (9th Cir. 1999) (dealing with the theft of tribal masks). I n neither of thes e l i nes of cases did we evaluate what it meant for funds or pr o p e rt y to “belong [ ] to any I ndian tribal org aniz a tion,” because it was clear that the property at issue b e l o n ge d to an I ndian tribal
org aniz ation.

At trial, the g overnment specifically chose not to a rg ue that Aubrey was an ag e nt of the tribe who had been intrusted with tribal funds. The g overnment a d m i t s a s much in its appellate briefing

, instead reasoning that “it i s ‘ex tremely unlikely ’ that the jury was confused as to the relevant ‘ag ent’ of the Navajo Nation when

. . . the jury instructions listing the elements of the Section 1163 offense identified NHA a nd F DHC as the ag ents, and t h e go v ernment did not urg e conviction on an Aubrey -as-an-ag e nt theory .” 5 Therefore, the
g o v e r n ment cannot rely o n the entrustment lang uag e in § 1163 to support Aubrey ’ s conviction, unless the
g overnment had previously a r g u ed that Aubrey misapplied and willfully c onverted funds while they were intrusted to the

5 T h e j u ry i n st r u ctio n s read

, i n relev an t p art, “ d ef en dan t

. . . did k n o w i n g ly an d w illf

u lly co n v ert to h is o w

n u se an d m isap p ly m o n ey s an d fu n d s

. . . in tru sted to t h e cu sto d y an d care o f th e Nav aj o Ho u sin g A u th o rity an d F ort Def

ian ce Ho u sin g Co rp o ratio n as ag en ts o f th e Nav aj o Natio n .”U N I T E D S T A T E S V

. A U

B R E Y 18

NHA and F DHC. The g overnment has never m a de that contention. I n stead, a l l of the g overnment’s contentions concerning Aubrey ’s misdeeds have to do with his use of the funds once they were disbursed to him. Therefore, f o r Aubrey ’s conviction to stand, the funds must have continued
t o belong to the N HA and F D HC after they were disbursed, when Aubrey

willfully converted or misapplied them.

To determine the meaning of the phrase “belong ing to any I ndian tribal org a

niz ation,” we look to the ordinary meaning of the phrase “b elong ing to.” See Metro One Telecomms., Inc. v

. C.I.R.
, 704 F

. 3d 1057, 1061 (9th Cir. 2012) (“W h en interpreting a statute, we must start with the lang u ag e of the
statute. Moreover, ‘[ i] n th e absence o f an indication to the contrary , words in a statute a r e assumed to bear their ordinary

, contemporary , common meaning .’” (alteration in orig inal) (citations omitted)). “B elong ” is commonly defined

as “to be the property of a person or th i n g .” B e long

, W e b ster’s New I

nternational Dictionary

(3rd ed. 1993); see al s o B elong

, B lack’s L aw Dictionary (9th ed. 2 009) ( p r o v iding the same definition). Therefore, § 11 6 3 criminaliz es a defendant’s “ embez z l[ ing ]
, steal[ ing ], knowing ly convert[ ing ] to his use or the use of ano t h e r, willfully mi sappl[ y ing ]
, or willfully permit[ ing ] to be misapplied” the property o f an I ndian tribal org aniz a tion.

W e have previously ex plo r e d what it means to be “property of” in a related c ontex t. The g en e r a l federal theft statute, 18 U.S.C. § 641 (upon which § 1163 w as modeled), punishes:

[ w] hoever embez z les, steals, purloins, o r knowing ly converts to his use or the use o f another, o r without authority

, sells, convey s o rU N I T E D S T A T E S V

. A U

B R E Y 19

dispo ses of any record, voucher, money , o r thing of val u e of the United States or of any department or ag ency thereof, or any property made or being mad e u n der contract for the United St a t es or any department or ag ency thereof[ .]

Id. ; see Chilkat Indian Vill. v. Johnson

, 8 70 F .2d 1 469, 1472 (9th Cir. 1 989). W hen determining whether funds s t o l e n o r embez z led were “of the United States,” w e have held that this requirement was satisfied when the United States had “ ‘title to, possession of, or control over’ the fu n d s involved.” See United States v. Kranovich

, 401 F. 3 d 1 107, 1113 (9th Cir. 2005) ( quoting United States v. Faust
, 850 F .2d 575, 579 (9th Cir. 1988)). F urther, we have “also looked to the amount o f control the g overnment has retained over funds when seeking
to determine w hether the funds are g overnment funds within the p urview of § 641.” Faust
, 8 50 F

. 2 d at 579. I n United States v. Von Stephens

, we held that the f e d e r al g overnment “has sufficient interest in its funds, even if comming led [ with
state and county funds]

, where it ex e rc i ses supervision a nd control over the funds a nd their ultimate u s e

. ” 7 74 F .2d 1411, 1413 (9th Cir. 1985) (per curiam).

W e now adopt the standards from Kranovich

, F a ust , a nd Von Stephens for use in the § 1163 c ontex t. T r ibal funds disbursed c ontinue to be “prope r t y belong ing to any I ndian tribal o rg aniz ation” as long as the tribe maintains “title to, possession o f, or control o ver them.” Kranovich

, 401 F .3d at 1113 (citation omitted). Th u s, funds that have been disbursed, even as reimbursement for completed work,

con t i n u e to b elong to the tribal org aniz ation if the tribal
org aniz ation “ex ercises s u p e r vision and c ontrol over theU N I T E D S T A T E S V

. A U

B R E Y 20

funds and their ulti m a t e u s e.” Von Stephens

, 774 F .2d at 1413.

Utiliz ing this standard, it is clear that the NHA ex ercised

s u f f i c ient control over the g rant funds to conclude that t h e funds b elong e d to the tribal o rg aniz ation. F irst, b efore g rant funds could be released by HUD, NHA was required to verify that actual, reimbursable work had already been co m pleted. To comply with th i s r e q uirement, the NHA reviewed all documents and invoices submitted by F DHC and Aubrey

, a nd conducted site inspections before a ny disbursements were made. Prior approval of fund disbursements i n d icates supervision a n d control. See United States v. Johnson

, 596 F .2d 842, 846 (9th Cir. 1979) (“[ U] rban funds g ranted to the ag e n c i e s

. . . should be utiliz ed under the strictest o f supervision, including submission b y the u nion of verified
pay rolls before additional sums are advanced by the redevelopment ag ency .”). Second, NH A ’ s requisition form (the form submitted b y A u b rey for all g r a nt fund reimbursements) indicated NHA’s continu ed interest in the funds. The requisition form required the followi n g certification:

I certify the data reported and funds r equested

on this voucher are correct and the a m o unt requested is not in ex ce ss of immediate disbursement needs fo r this prog ram. I n the
event the funds p rovided become more than
necessary , such ex c ess will b e promptly returned (via NHA) as directed by HUD.

Thus, N HA’s form made it cl e a r t h a t, even after funds were disbursed, NHA retained an interest in the funds. T h i r d,
t h e s u b

- g r a n t a g r e e m e n t r e q u i r e d F D H C ( a n dU N I T E D S T A T E S V

. A U

B R E Y 21

A u b r e y / L o d g e b u i l d e r w h o , t h r o u gh t h e C o n s u l t a n t Ag reem e n t , stepped into F DHC’s shoes with reg ard to manag in g the NAHASDA funds) to comply with NHA’s policies and submit numerous reports to NHA. Additionally

, the sub-g rant ag reement g ave NHA the a uthority to audit a

nd demand accounting s from F DHC and its sub-g rantees. The ability to audit and requi r e periodic reporting indicates supervision a

nd c ontrol. See Von S

tephens

, 774 F .2d at 1413 (reasoning that audit and reporting r e q u i rements, as w ell a s power to ex amine fund recipient’s bank accounts, constituted supervision a

nd control); U

nited States v. Gibb s , 7 04 F .2d 464, 465–66 (9th Cir. 1983) (per c uriam) (finding supervision and control when periodic r eports a n d audits were required). Trial testimony c onfirmed that NHA ex ercised i t s audit a nd investig ation authority in respons e to Aubrey ’s suspected misuse o f the g rant f

unds. The testimony also confirmed that NHA eventually obtained records f r om L odg ebuilder in an effort to a ccount for misappropriated funds. Taken tog ether,

a r easonable jury could find ( a) that the f u nds misappropriated or converted b y Aubrey belong e d to a tribal

o r g a n i z a t i o n , e v e n i f t h e f u n d s w e r e c o n s i d e r e d reimbursement for work already completed; and (b) that NHA had sufficient supervision and contro l o f the NAHASDA funds.

B. Sufficiency Challenge

Aubrey was convicted o f two counts of embez z lement o r misapplication under 18 U.S.C. § 1163. Count F our focused

on the period from May 2 0, 2004 to J une 8, 2004, and Count Fi ve dealt with events on or about J une 24, 2004. A u b r e y arg ues that there was insufficient e vidence to convict him o f either Count. “I n reviewing the sufficiency of the evidence, [ the court] construe[ s] the evidence in the l ig h t mostU N I T E D S T A T E S V

. A U

B R E Y 22

favorable to the prosecution, and then ask[ s] whether a ny rational trier o f fact c ould have f ound the essential elements of the crime bey

ond a reasonable doubt.” W iggan
, 700 F .3d
at 1210 (quoting United States v. Nevils

, 598 F .3d 1158, 1161 (9th Cir. 2010)) (internal quotation marks omitted). “B ecause the g overnment does n ot n e e d to rebut all reasonable interpretations of the evidence that would establish the defendant’s innocence, o r ‘rule out every hy pothesis e x cept that of g uilt bey ond a reasonable doubt’

. . . , a reviewing
court may not ask whether a finder of fact could have construed the e vidence produced at trial to support acquittal.” N e vils

, 598 F .3d at 1164 (quoting Jackson v. Virgini a , 443 U. S. 3 0 7, 3 26 (1979)). Therefore, we focus on the evidence tha t , w hen taken in the lig ht most f avorable to the prosecution, supports Aubrey ’s conviction.

1. Aubrey’s Count Four Conviction

Taken in the lig ht most f

a v orable to the prosecution, the
non-pay men t of funds to F o ur States Electric presents sufficient e vidence such that a ny rational trier of fact could have c o n v i ct ed Aubrey on Count F our. F our States performed the electrical w ork on the Chilchinbeto project in M a r c h and April 2004 and submitted timely bills to F DH C

. The ensuing requisitions reflected F our States’s performance and r equested a total of $200,000 in N AHAS D A f unds for site electrical work. On each o cc a s i o n, NHA issued c hecks contai n ing the requested amounts to F DHC, which then passed the funds to Aubrey

. Aubrey

, in turn, deposited those funds in his bank account and moved them among accounts from which he paid personal e x penses, including pay ments to two casinos totaling more than $100,000 in May 2004

. Y et neither F DHC nor Aubr e y ( o n behalf o f F D HC) paid F ourU N I T E D S T A T E S V

. A U

B R E Y 23

S t a t e s Electric. This pattern was repeated for many othe r subcontractors who worked on the Chilchinbeto project.

As discussed above, the NAHASDA funds distributed to Aubrey belong ed to the NHA, a tribal org aniz ation, because it had the authority to supervise a nd c ontrol the fu n d s e v en after they had been delivered to Aubrey

. W itness testimony established that Aubrey was not free to use the NAHASDA funds as he saw fit, but was oblig ated to make sure they were delivered to the subcontractors who had requisitioned the funds. Despite the fact that f u n ds had been delivered to Aubrey to pay F our Sta t e s f o r its site electrical work, F our States never received pay

ment from e ither Aubrey or F DHC. I n the same p eriod of time, Aubrey made larg e pay ments from the same account to satisfy h is personal g ambling debts. W h e n combined with evidence that Aubrey lied when confronted about the non-pay ment, hi s c o n ceded failure to put the NAHASDA funds to their design a ted purpose constitutes sufficient evidence that could allow a rational trier of fact to conclude, bey ond a reasonabl e doubt, that Aubrey had embez z led or misapplied those funds.

B o t h a t t rial and before this c o u rt, Aubrey provided various alternative e x planations for w hy he was authoriz ed to

re t a i n NAHASDA funds for h is own use. He arg ued that (1) he spent $ 690,000 of his own money for the Chilchinbeto project and was therefore entitled to keep the NA HASDA funds as reimbursement; (2) the g o vernment was not able to show that he was using NAHASDA funds to pay for his o wn personal ex penses; and ( 3) the Chilchinbet o p r o ject was underfunded and the reason s ubcontractors were not g etting paid was because of un d e r funding

, not misappropriation. However, none of these a rg u ments ex plain why money p aid
to Aubrey (f

or the sole purpose of pay ing specificU N I T E D S T A T E S V

. A U

B R E Y 24

subcontractors) never made it to the subc o n t r actors. I f Aubrey were pay ing the subcontractors from h i s own funds and then keeping the N AHASDA reimbursement funds as he claims, the subcontractors still would have been g e tting paid. Even if the project were underfunded, the subcontract ors would have at least been paid up to the NAHASDA limit for their work, and they would only be unpaid to th e e x tent that the NAHASDA f

unds were i n sufficient to cover their submitted invoices. I nstead, t h e e v idence showed that NAHASDA fu n d s were being used by Aubrey

, a nd subcontractors were not receiving pay ment. Th i s e vidence

was sufficient to allow any r ational jury to conclude, bey ond

a reasonable doubt, t h a t A ubrey w as misappropriating the tribal funds.

2. Aubrey’s Count Five Conviction

Count 5 d ealt with pay

ments delivered to Aubrey in J u ne 2004. The e vidence showed that (1) FD H C r e quested $133,700 in pay

ment for work prior to J une 1 on s t reets ($84,000), site electrical ( $36,000), and g utters ($13,000); (2) NHA issued a check in the requested amount; ( 3) Aubrey deposit e d the check into an F DHC account at his bank on J une 21, 2 00 4; and (4) the n ex t day

, Aubrey transferred $45,000 from that FD HC account to the joint Aubrey -Todd
account. Two day s later, on J un e 2 4
, Aubrey cut a $50,000 check to the Paris Casino from his separate personal account,

an d t h e bank covered that check by sweeping in $25,400 attributable to the recently d eposited g rant funds. These actions f ollowed Aubrey ’s pattern o f depositing g r ant money into h is personal accounts and then, within day s , p a y i ng out larg e -scale ex penses. Taken in the lig ht most favorable to the prosecution, this evidenc e s upported the jury ’s reasonable inference that Aubrey was putting g rant funds earmarked forU N I T E D S T A T E S V

. A U

B R E Y 25

another purpose to his personal use or w as, at the very least,

m i s a p propriating the f

unds to the pay

ment of parties oth e r than the subcontractors whose invoices supported the requisitions.

Once a g ain, alth o u g h A ubrey p resents a lternative

ex p lanations for why he was e n titled to k eep the funds requisitioned in J une, the jury heard his ex planat i o ns a nd rejected them. B ecause sufficient evidence was presented to support his conviction, the d istrict court did not err in deny ing Aubrey ’s Rule 29 motion for acquittal.

II.

Aubrey a rg ues that ( 1 ) t h e district court erred by not requiring Hoog oian to be c e rtified a s an ex pert wit n e s s a nd compelling ex p ert disclosures, and (2) the district court erred by allowing Hoog oian’s summary charts to be admitted into evidence.

A. Expert Certification

A trial court’s decision to admit or ex clude ex pert testimony is reviewed f

or abuse of discretion. United States

v. Gonzales

, 307 F

. 3 d 906, 909 (9th Cir. 2 002); United States

v. Laurienti (

Laurienti I

), 6 11 F .3d 530, 547 (9th Cir. 2010). U n d e r the a

buse of discretion standard, if the district cou r t identified the correct leg al r u le, then its ruling must be affirmed u nless the “court’s application of t h e c o rrect leg al standard was illog ical, impl a u sible, or without support in infere n ces that may be drawn from the facts in the record.” United States v. Redlightning

, 624 F .3d 1090, 1110 (9th Cir. 2010).U N I T E D S T A T E S V

. A U

B R E Y 26

A u b r e y arg ues that the district court was required t o certify Hoogo i a n as an ex p ert witness, solely b ecause of his use of the “last-in-first-out” accounting method in preparing his summary charts. Aubrey cites to no authority to support this contention. Rather, he arg ues broadly that “‘last-in-firstout’ is neither a F ederal Rule of E vidence 1006 summary nor

an ex ample of lay witness opinion p roper under F ederal Rule of Evidence 701.”

I n addressing Aubrey ’s objection and motion for mistrial, the court ruled:

I d on’t think any

thing that he’s t estified to would call for ex p ert opinion testimony o r involve ex pert opinion testimony under 702. All of his t e s t imony ’s been under 701, lay –lay witness testimony . And h e may be an

ex p ert, b u t he hasn’t testified as an ex pert. He’s testify ing to f

acts of which he h ad personal knowledg e

. And he [ is] subject to

cross-ex amination on his

. . . conclusions as to what those ex p enses were.

. . . [ P] ersonal k n o w l e d g e w o u l d i n c l u d e h i s o w n investig ation as to the pay ees and he’s subject
to cross-ex amination o n that. Personal knowledg e as to the checks that he saw.

The court then a s ked w hether all of the source material, on which Hoog oian was b asing his testimony

, had been provided
to Aubrey

. Aubrey answered, “I t was pro d u c ed in discovery .” F u rthe r , w hen the g overnment asked Hoog o ian about other forms of a n al y s i s that he may have used when creating his summary , the district co u r t r e cog niz ed that the question was “g et[ ting ] into the a r ea of k ind of dealing withU N I T E D S T A T E S V

. A U

B R E Y 27

ex p ert testimony ” a

nd prevented the g overnme n t from pursuing that line of questioning

.
Hoog oian was not requi r e d t o be certified as an ex pert. H oog o ian testified about his own personal investig ati o n o f F DHC and L odg ebuilder in his c apacity as a HUD auditor in accordance w ith F ederal Rule o f Evide n ce 701. Althoug h Hoog oian mig ht have b een elig ible to be ce r t i fied a s an

ex p ert, the district court properly restricted h is testimo n y to the a reas in which h e h ad personal knowledg e (the documents, investig ation, and the methods he used to p repare his summary

) and prevented him f

r om providing in-depth analy sis of v arious accounting methods. Simply because Hoog oian stated that he u sed “ last-in-first-out” to construct his summary charts did n o t t r ansform his testimony into

ex p ert testimony

. I nstead, Hoog oia n was merely providing foundation for the evidence he was presenting

. F u rther, when Hoog oian was prompted b y the prosecut i o n t o discuss the merits of the “last-in-first-out” accou n ting method, the district court properly prevented Hoog oian from a nswering

, as that sort of testimony could stray into th e r e alm o f ex pert testimony

. According ly

, two p assing references to the “lastin-first-out” method (when ex plaini n g h is own procedure in constructing the charts) is not sufficient to require the district
court to certify Hoog oian as an e x pert witness. See Teen-Ed, Inc. v. Kimball Int’l, Inc
., 6 20 F .2d 399, 403 (3d Cir. 1 980) (“The f a ct that Z e i tz mig ht have b een a ble to qualify a s an

ex p ert witness on the u se o f accepted a ccounting principles in the calculation of business losses s h o u l d not have prevented his testify ing on the basis o f his know l e d ge o f appellant’s records about how lost profits could be calculated from the data contained therein.”).U N I T E D S T A T E S V

. A U

B R E Y 28

B. Sum m a ry Evidence

“I t is long e stablished that, w here records are voluminous,

a summary , either oral or written, may be receive d in evidence.” Sam Macri & Sons, Inc. v. U .S. for Use of Oaks Const. Co.
, 313 F .2d 119, 128–29 (9th Cir. 1963). However, the summary must meet the requirements of Rule 1 006. See Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc.
, 772 F .2d 505, 515 n.9 (9th Cir. 1 985) (holding that a “self-calculated” and “unverified” summary was properly admitted w hen the underly ing records su p p orting the summary were made available to the other p arty and w here the par t y w a s g iven

“ ample opportunity to cross-ex amine” the person w h o

oversaw the p reparation of the summary )

. Rule 1006 requires that “[ t] h e proponent must make the orig inals or dupli cates [ of the voluminous writing s] available for ex amination o r copy ing

, or both, b y other parties at a reasonab l e t i m e a nd place.” W e review for abuse of discretion “a district court’s admission of summary evidence.” United States v

. Anekwu

, 695 F .3d 967, 981 (9th Cir. 2012).

W h en preparing h is summary testi m o ny and charts, Hoog oian sifted throug h multiple bankers’ box es wor t h o f documents co ncerning deposits a nd withdrawals from Aubrey ’s bank accounts. Under the plain lan guag e of Rule 1006, the go vernment was permitted to “use a summary , chart, o r calculation to prove the content of voluminous writing s, recording s, o r photog raphs t hat cannot be conveniently ex amined in c ourt.” Multiple bankers’ box es o f bank statements constitute the ty pe of materials anticipated by Rul e 1 006. F urther, the district court e nsured that the
go v ernment made the documents u nderly ing the summa r y available to Aubrey

, as Aubrey admitt e d they had d one.U N I T E D S T A T E S V

. A U

B R E Y 29

Therefore, nothing s ug g ests that the g overnment f ailed to satisfy Rule 1006.

The district court did not abuse its discretion by allowing Hoog oian’s summary c harts to be admitted into evidence. I n United States v. R izk

, we held t h a t s u m mary evidence is adm i s s i ble as evidence if “ the underly ing materials upon which the summary is based ( 1 ) are admissible in evidence and (2) were made available to the opposing party for in spection.” 660 F

. 3d 1 125, 1130 (9th Cir. 2011). Additionally

, in A nek

wu , we noted that “we have not arti c ulated a b rig ht-line rule ag ainst admission of summary charts a s evidence.” 695 F .3d at 981–82 (citation a nd alterations omitted). I n fact, the d istrict court has “discretion under F ederal Rule o f Evidence 611(a) to admit summary

ex h i b its for the purpose of assisting the jury in evaluating voluminous evidence.” Id. at 982 (citation and alterations omitted). W e further concluded in Anekwu that “we n eed not embrace o r condemn the procedure follo w ed b y the district court,” because “the e r

ror is harmless g iven ad m i ssibility o f the underly ing data, lack of objection t o a c c u r acy of the
summary , and the limiting instruction.” I d. (citation omitted).

Aubrey never objected to the accuracy of the summaries
at trial. I nstead, he merely objected to Hoog oian’s testimony

, because he thoug ht that Hoog oian should have been r equired
to be certified as an ex pert. On appeal, Aubrey now arg ues that admission of the summary charts into evidence was error. However, the underly ing ban k account records were admissible 6 a

nd delivered to Aubrey in discovery

. Therefore, under Rizk

, the d istrict court did not abuse its discretion in allowing the summary c h arts to b e entered into evidence.

6 A u b rey h as n o t arg u ed th at th e reco rd s w ere in ad m issib l e.U N I T E D S T A T E S V

. A U

B R E Y 30

F urther, even if admitting the summar y charts into evidence

were error, that error was harmless u n d e r A nekwu

. The district court provided the Ninth Circuit’s Pattern I nstruction 4.16 (as a limiting instruction) that said “[ c] ertain charts a nd summaries have been admitted in evidence,” those “[ c] harts and summaries are o nly as g ood a s the underly ing supporting material,” and jurors should “g ive them only such weig ht a s y ou th i n k the underly ing material deserves.” Therefore, “g iven [ the] admissibility o f the underlying d a ta , l ack o f objection to [ the] accuracy of the summary , and the limiting instruction,” any

error was harmless. See Anekwu , 695 F .3d at 82.

III.

Aubrey arg ues that the district court erred by providing a jury instruction containing the l a ng uag e, “Second, those funds or that money belong ed to an I n dian tribal org aniz ation

or was intrusted to the custody or car e o f an ag ent of an I ndian tribal org aniz ation.” Aubrey arg ues tha t t h e district
court should have instead used his pr o p o s ed instruction that read, “Second, those monies and funds belong ed to the Navajo Housing Authority and its subg rante e Fort D efiance Housing A uthority

, as ag e nts of the Navajo N ation, rather than belonged to defenda nt W illiam Aubrey or someone else

. ” On a p p e a l

, Aubrey arg ues that the g iven jury instruction (1) f ailed to address his theory of defense tha t t he NAHASDA funds belong ed to Aubrey or subcontractors, not the NHA or F DHC, a

n d (2) allowed the jury to c onvict Aubrey under an ag e ncy theory

. At trial, althoug h Aubrey objected to the instruction, hi s objection merely a rg u ed that the instruction should hav e b een split into three elements i n s t e a d of two. He did not object on the g round tha t t h e i nstruction did not cover his theory of defense. B ec a u s eU N I T E D S T A T E S V

. A U

B R E Y 31

Aubrey failed to “state with a d e q uate specificity the g rounds for an objection to a jury instruction before the jury retires,”

we review this claim for plain e rror. 7 United States v. Hofus

, 598 F .3d 1171, 1175–76 (9th Cir. 2010).

“A defendant is entitled to have the judg e instruct the jury

on his theory of defense, provided that it is supported by law and has some fou n d a t i o n in the evidence.” United States v

. Mason
, 902 F .2d 1434, 1438 (9th Cir. 1 990), o verruled on other grounds by Dixon v. United States , 548 U.S. 1 (2006). “[ B ] ut it is not r eversible er r o r to reject a defendant’s proposed instruction

. . . if o ther instructions, in their entirety

, adequately

cover the defense theory

. ” Id.

The d istrict court did not err by g iving its jury instruction rather than Aubrey ’ s proposed i n s t r uction. T h e jury instructions adequately covered Aubrey ’s theory of defense. Section 1163 allows for a conviction if the d efendant “embez z les, steals, knowing ly converts to his u s e o r the use of another, willfully misapplies, or willf u l l y permits to be misapplied,” fund s “ b elong ing to any I ndian tribal
org aniz ation or intrusted to the custody or care of any officer, employ e e, or ag ent of an I ndian tri b a l org aniz a tion.” The jury instruction provided b y the c o u rt followed the statute closely

. The court’s jury instructions then defined conversion, willful misapplication, e mbez z lement, a nd stealing

. E ach of these definitions included the p h rase “of another” or “belong s to another.” Thus, under the instructions p r ovided by the court, it would have b een c l e ar

7 T o satisf y th e plain erro r stan dard o f rev iew

, “ [t]h ere m u st b e an ‘ erro r’ th at is ‘ p lain ’ a n d th at ‘ af f ect[s] su b stan tial rig h ts.’ ” Un i t ed S ta tes v. Ola n o , 5 0 7 U .S. 7 2 5
, 7 32 (1 9 9 3 ) (q u o tin g Fed

. R. Crim

. P ro c. 5 2 (b )) (seco n d alteratio n

in o rig in al).U N I T E D S T A T E S V

. A U

B R E Y 32

to the jury that it could not convict Aubrey if it found that the funds b elong e d to him. The instru c t i o ns also provided that Aubrey could not be convicted if the jury found that the funds belong ed to the subcont ra c tors. I nstructions fifteen a nd six teen only allowed for Aubrey ’s c onviction if the j u ry found that the funds “ belong ed to an I ndia n t ribal
org aniz ation or was intrusted to the c u stody or care of an ag ent of an I ndian tribal org aniz ation.” Under the plain

me a n i n g o f this instruction, if the jury f ound that the funds belong ed to subcontractors, it could not convict Aubrey

, because then the fund s would not belong to a tribal
org aniz ation. Nothing would be g ained by adding Aubrey ’s proposed lang uag e “rather than belong ed to defend a nt W illiam A ubrey or someone else.” Therefore, the district
court did not err by p r o v i d i ng the instructions it did to the jury

. See United States v. Keyser
, 704 F

. 3d 631, 6 41–42 (9th Cir. 2012) (“[ A] defendant is entitled to have his theory fairly and adequately covered by the instructions, but is n ot entitled
to a n instruction in a particular form.”). W ithout error, there can be no plain error.

The court’s jury instruction also did not allow Aubrey ’s conviction on an impr o p er a g ency theory

. Section 1163

ex p ressly allows convi ction if the jury finds that the funds

w e re intrusted to an ag ent of an I ndian tribe. The jury instructions p rovided by the c ourt specifically identified “the Navajo H o u sing Authority and F ort Defiance Housing Corporation as ag ents o f the N avajo Nation.” Therefore, the jury would h ave reasonably understood that NHA and F DHC

were the a

pplicable ag ents under instructions fif teen a nd six teen. The jury instructions were not “misle ading o r ina d e quate to g uide the jury ’s deliberations,” because they properly stated the law a n d e x pressly identified the basis
upon w hich the g overnment so u ght conviction. See UnitedU N I T E D S T A T E S V

. A U

B R E Y 33

States v. Johnson

, 680 F .3d 1140, 1147 (9th Cir. 2 012) (quoting United States v. Holmes

, 2 29 F .3d 782, 786 (9th Cir. 2000) (internal quotation marks omitted)). Thus, the district

co u rt did not commit error, p lain or o therwise, in providing the jury the instructions that it did.

IV.

Aubrey challeng es two sentencing enhancements that the district court imposed: ( 1) a six teen-level increase pursuant to U.S.S.G. § 2B 1.1(b)(1)(I ) for loss more than $1,000,000 but
not more than $2,500,000; and (2 ) a two-level enhancement for abuse of trust pursuant to U.S.S.G. § 3B 1.3.

A. Sixteen-level increase

W e review a district court’s fac t u a l c alculation of the
amount of loss under the Guidelines f or clear error. United States v. Stargell

, 738 F .3d 1018, 1024 (9th Ci r

. 2 0 1 3 )

. “A reviewing court must a sk whether, ‘on t h e e ntire evidence,’ it is ‘left with the d efinite and firm conviction that a mistake has been committed.’” Id. ( alterations omitted) (quoting Easley v. Cromartie

, 532 U.S. 234, 242 (2001)).

L ooking a t all of the evidence in this case, t h e district

cour t d id not clearly err by finding a loss more than $1 million, but not more than $2.5 million. W hen m a k i n g its sentencing dete r mination, the district court pointed to two
measures, bot h o f w h ich indicated a loss g reater than $1 million but less than $ 2.5 million. The d istrict court reasoned:

I have concluded that because o f the failure to pay cont r actors for whom funds had beenU N I T E D S T A T E S V

. A U

B R E Y 34

r e q

uisitioned, there was a cascade of
consequences including the fact that NHA h ad
to take steps a t that p oint–once they l e arned that at least one contractor h adn’t been paid with requisition monies, they had to pull the plug

, a nd that c aused conseq uential damag e s that ex ceeded $1 million. The NHA fig ure is 2.2 million.

The district court then noted that it “put some stock in Hoog oian[ ‘s] analy sis, but [ it didn’t] rest [ its] decision entirely on that in finding that the loss a mount was more than $1 million b ut less than $2,500,000.” H oog oi an’s analy sis indicated that $1,989,339 of N AHASDA funds were spent for Aubrey ’s personal use. Other evidence, presented at trial also supports the e nhancement. The FD H C bankruptcy audit indicated that L odg ebuilder owed $1,562,921 to contractors who had wo rk ed on the Chilchinbeto project and that L odg ebuilder should have had access to $4,501,341 in allocated NAHASDA g rant funds to pay those cont r a ctors. However, the NAHA S D A f u nds were not used f

o r their desig nated pur

p o s e

. Thus, e ven thoug h Aubrey presents alternative theories about why t h e a mount of loss should be less, the district court’s finding is not clearly erroneous. See United States v. Reed

, 8 0 F .3d 1419, 1424 (9 t h Cir. 1 996) (“W here there are two permissible views of the evidence, the factfin d e r ’ s choice b etween them cannot b e clearly erroneous.”) (quoting Anderson v. City of Bessemer
, 4 7 0 U.S. 564, 574 (1985)).

B. Two-level enhancem ent

The Guidelines prescribe a two-level e n hancement “[ i] f the defendant abused a position of public or private trust

. . .U N I T E D S T A T E S V

. A U

B R E Y 35

in a manner that s i gn ificantly facilitated the commission o r concealment of the offense.” U.S.S.G. § 3B 1 .3.

As a prelimi n ary matter, we first address Aubrey ’s contention that the enhancement in § 3B 1.3 cannot app l y i n his case, because an a

buse o f t r u s t o r skill is included in the offense of his conviction. W e review this arg ument de novo, because it involves interpretation § 3 B 1.3 o f the Sentencing Guidelines. See U

nited States v. Gomez-Leon
, 545 F .3d 777, 782 (9th Cir. 2008). Section 3B 1.3 provides:

I f the defendant a

bused a position of public o r private trust, o r used a special skil l

, i n a

manner that sig nifi c antly f acilitated the commission o r concealment of the offense, increase b y 2 levels. This adjustment may not be employ ed i f a n a buse of trust or skill is included in the base o

f f en s e level or specific offense characteristic.

(emphasis added). A ccording to Aubrey

, the second sentence of § 3B 1.3 precludes its applicat i o n t o h is case, because the offense h e was convicted of include d “ an a buse of trust o r skill.” However, Aubrey misinterprets § 3B 1.3. I n Laurienti I
, this cour t c larified, “The [ abuse-of-trust] enhancement is inapplicable only if the base offense level necessarily includes

an abuse of trust, reg ardless whether the defendant’s o ffenses of conviction include an abuse of trust.” 611 F

. 3d at 556 (alteration in orig inal). Therefore, it is the base offense level that matters, not the offense o f conviction. Here, the base offense level of Aubrey ’s charg es was derived from U.S.S.G. § 2B 1.1. I n United States v. Ajiboye , we held:U N I T E D S T A T E S V

. A U

B R E Y 36

Ajiboy e w as a ssig n ed a b ase o f f ense level o f 4 under Section 2 B 1.1(b)(1) (“L arcen y , Embez z lement, and Other Fo r ms of Theft”). This provision of the Guidelines does not i n c l u de “an a

b use o f trust o r skill” in it

. Ajiboy e’s two-level enhancement for abuse o f

a p o sition of trust thus cannot be attacked o n that basis.

961 F .2d 892, 895 n.4 (9th Cir. 1992). Under Aj i b o y e , the base offense level in Section 2B 1.1 does not include an abuse of trust or skill. Th e refore, Aubrey ’s preliminary arg ument fails.

W e now address the district c ourt’s application o f § 3B 1.3
to t h e facts o f Aubrey ’s case. W e review a district court’s application of an abuse-of-trust e nhancement under a twostep analy s i s

. S

ee United States v. Laurienti (L aurienti I I ), 731 F .3d 9 6 7, 9 73 (9th Cir. 2013). F irst, we determine “[ w] hether a defendant acted from a ‘p o s i t i o n of trust’ a s defined by the Guidelines” under de novo review. I d. Then, “[ i] f we decide that the defendant held a position o f trust, we review for clear error the [ d i strict] court’s d e cision whether the defendant’s abuse of his position sig nificantly facilitated the offense.” Id.

Turning to the fir s t step of the “abuse of trust” analy sis, Aubrey was in a position of trust. “[ T] he presence or lack o f ‘professional or manag erial d i s c r e t i o n ’ r e p r esents the decisive factor in deciding whether a defendant occupied a position o f trust.” Id. (quoting Unite d S t a tes v. Contreras
, 5 81 F .3d 1163, 1166 (9th Cir. 2 009)). “A d efendant has this discretion when, because of his or her special knowledg e, ex pertise, or
manag erial authority

, he o r she is trusted t o ex erciseU N I T E D S T A T E S V

. A U

B R E Y 37

substantial discretionary judg ment th a t is ordinarily g iven

c o n siderable d eference.” Id. ( citation and alteratio n s o m i t t e d )

. Aubrey arg u es th a t “[ w] hile [ he] had professional a nd

ma n ag erial discretion with respect to his private for-profit

c o mpany L odg ebuilder, he did not have that same posit i o n within F DHC or NHA to warrant this enhancement.” This
arg ument is contradicted by the evidence presen t e d at trial. Trial evidence supported the conclusion that F D HC deleg ated financial manag ement of the Chilchinb e t o p r o j ect to Aubrey ’s
company , tha t h i s company then stepped into the shoes o f F D H C
, a n d that Aubrey had “the r eal a uthority ” at F DHC, because he “handle[ d] all of the finances.” T he district court looked at these facts and concluded:

This case is more t h an a simple case o f misapplication. I t involves a person who was really controlling the entire operations of a nonprofit and c ombining millions o f dollars in–running millions of doll a r s throug h a personal acc o u nt, c ombining it with trust monies, and then g ambling and doin g the other thing s that were e videnced during the trial.

R eviewing the evidence of this case de novo, we conclude that t h e district c ourt did not err b y concluding that Aubrey occupied a position of trust.

Under the second prong , the district c o u r t found that Aubrey ’s position of trust f acilitated the crime. This finding is reviewed for clear error. Id

. We conclude that the district court’s finding w as no t cl early erroneous. The evidence showed that F DHC handed Aubrey millio n s i n g rant funds and ex ercised little oversig ht a s h e s h ifted the funds a mongU N I T E D S T A T E S V

. A U

B R E Y 38

the v arious accou n t s h e controlled. I n fact, Aubrey (rather than F DHC) c ontrolled the F DHC’s financial records soug ht by NHA officials when they started investig ating the r eported
non-pay ments. T hat F D H C r eally had no idea what Aubrey

was “up to” indicates that he was in a p osition of trust a n d used that position to facilitate or conceal the mismanag ement of the NAHASDA g r ant funds. Thus, we c o nclude that the district court’s finding that Aubrey ’s position of trust facilitat e d t he commission of this crime was n ot clearly

erroneous.

AF F IRMED.