United States of America v. Tony James Belcourt

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY JAMES BELCOURT,
Defendant - Appellant.
No. 14-30173
D.C. No. 4:13-cr-00082-BMM-1
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY JAMES BELCOURT,
Defendant - Appellant.
No. 14-30174
D.C. No. 4:13-cr-00039-BMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 14-30175
D.C. No. 4:14-cr-00017-BMM-1
FILED
APR 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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TONY JAMES BELCOURT,
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY JAMES BELCOURT,
Defendant - Appellant.
No. 14-30176
D.C. No. 4:13-cr-00098-BMM-1
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted April 7, 2016**
Seattle, Washington
Before: GILMAN,*** RAWLINSON, and CALLAHAN, Circuit Judges.
Defendant-Appellant Tony James Belcourt pled guilty pursuant to a global
interdependent plea agreement to one count of theft from an Indian tribal
government receiving federal funding, in violation of 18 U.S.C. § 666(a)(1)(A);
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
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two counts of accepting a bribe, in violation of 18 U.S.C. § 666(a)(1)(B); and one
count of federal income tax fraud, in violation of 26 U.S.C. § 7206(1). He now
appeals his sentence and the district court’s calculation of restitution.
1. The district court reasonably concluded that Belcourt held a
“high-level decision-making or sensitive position.” U.S.S.G. § 2C1.2 cmt. n.3.
Belcourt managed the tribal construction company, approved the disbursement of
funds, possessed de facto power over important financial decisions that affected the
tribe, and otherwise exerted substantial influence over the tribal construction
company’s decision-making processes. The district court’s conclusion that
Belcourt held a high-level decision-making or sensitive position was not clearly
erroneous. See United States v. Lloyd, 807 F.3d 1128, 1176 (9th Cir. 2015)
(stating standard).
2. The district court did not clearly err in determining that Belcourt was
an organizer or leader. See U.S.S.G. § 3B1.1(a). The district court referenced
evidence that Belcourt directed payments to various entities, and those entities in
turn redirected payments to Belcourt and his wife, often within days of the original
payments. These activities constituted circumstantial evidence that Belcourt
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directed others to act. Moreover, Belcourt admitted at the sentencing hearing that
he organized and led others, stating: “[T]here was [sic] people above me, people
below me . . . I had people below me. . . .” Nevertheless, Belcourt was the
common denominator among numerous identified individuals and entities. See
United States v. Yi, 704 F.3d 800, 807 (9th Cir. 2013) (upholding enhancement
where “the defendant exercised some control over others involved in the
commission of the offense or was responsible for organizing others for the purpose
of carrying out the crime”) (citation omitted).
3. The district court’s factual findings supporting the restitution amounts
were not clearly erroneous. The district court did not abuse its discretion in
denying the requested $200,000 offset in restitution because Belcourt did not show
that the purported $200,000 in unpaid services compensated the Tribe for the theft
and bribery. There was no proof that the tribe received $200,000 worth of services
from Belcourt independent of the services he was expected to perform as Chief
Executive Officer of the tribal construction company, a job for which he received
an annual salary of $150,000. See 18 U.S.C. § 3664(j)(2) (explaining that the
defendant may be entitled to an offset of “any amount later recovered as
compensatory damages for the same loss by the victim”).
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AFFIRMED.1
1 Appellee’s Motion to Take Judicial Notice of Additional Documents Not
Part of Record, filed on October 27, 2015, is DENIED as moot.
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