United States of America v. William Aubrey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM AUBREY,
Defendant-Appellant.
No. 13-10510
D.C. No.
2:09-cr-00206-
KJD-PAL-1
OPINION
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, Senior District Judge, Presiding
Argued and Submitted
May 11, 2015—San Francisco, California
Filed September 8, 2015
Before: Diarmuid F. O’Scannlain, Sandra S. Ikuta,
and N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith

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UNITED STATES V. AUBREY 2
SUMMARY*
Criminal Law
The panel affirmed a conviction and sentence for two
counts of conversion and misapplication of funds from a
tribal organization, in violation of 18 U.S.C. § 1163.
The defendant is a contractor who owned a controlling
interest in, and managed and controlled, two construction
companies. His conviction resulted from his involvement in
projects he performed for the Navajo Nation.
The panel held that for purposes of § 1163, funds paid
from an Indian tribal organization to a contractor continue to
be “property belonging to any Indian tribal organization,” as
long as the tribal organization maintains sufficient
supervision and control of disbursed funds and their ultimate
use. The panel held that a reasonable jury could find (a) that
the funds misappropriated or converted by the defendant
belonged to a tribal organization, even if the funds were
considered reimbursement for work already completed; and
(b) that the Navajo Housing Authority had sufficient
supervision and control of the funds allocated to it by the U.S.
Department of Housing and Urban Development pursuant to
the Native American Housing Assistance and Self-
Determination Act. The panel concluded that there was
sufficient evidence for a rational jury to conclude beyond a
reasonable doubt that the defendant was misappropriating the
tribal funds.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. AUBREY 3
The panel held that the district court did not err by not
requiring a prosecution witness, a forensic auditor with
HUD’s Office of Inspector General, to be certified as an
expert; 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 district court did not err in
instructing the jury.
The panel held that the district court did not err in
applying sentence enhancements for loss more than
$1,000,000 but not more than $2,500,000 and abuse of trust.
COUNSEL
Michael J. Kennedy (argued), Chief Assistant Federal Public
Defender, Rene Valladares, Federal Public Defender, Reno,
Nevada, for Defendant-Appellant.
Scott A.C. Meisler (argued), Sung-Hee Suh, Deputy Assistant
Attorney General, and Leslie R. Caldwell, Assistant Attorney
General, United States Department of Justice, Criminal
Division, Appellate Section, Washington, D.C.; Daniel G.
Bogden, United States Attorney, Elizabeth Olson White,
Appellate Chief, Kathryn Newman and Adam McMeen
Flake, Assistant United States Attorneys, Las Vegas, Nevada,
for Plaintiff-Appellee.

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UNITED STATES V. AUBREY 4
OPINION
N.R. SMITH, Circuit Judge:
For purposes of 18 U.S.C. § 1163, funds paid from an
Indian tribal organization to a contractor continue to be
“property belonging to any Indian tribal organization,” as
long as the tribal organization maintains sufficient
supervision and control of disbursed funds and their ultimate
use. Accordingly, we reject William Aubrey’s contention
that the evidence presented at his trial was insufficient to
prove that he converted or misused property belonging to an
Indian tribal organization in violation of 18 U.S.C. § 1163.
We also deny Aubrey’s other challenges to his conviction and
sentencing.
BACKGROUND1
A. Overview of the federal funding of tribal housing
projects
Under the Native American Housing Assistance and Self-
Determination Act, 25 U.S.C. §§ 4101–4212 (“NAHASDA”),
the U.S. Department of Housing and Urban Development
(“HUD”) allocates federal money to Indian tribes to fund the
construction and maintenance of affordable housing on Indian
reservations. HUD evaluates a tribe’s specific needs and then
1 Aubrey contends that there was insufficient evidence that he converted
or misapplied housing grant funds that belonged to an Indian tribal
organization or were entrusted to that organization’s agents. Therefore,
we present the facts “in the light most favorable to the prosecution.”
United States v. Hicks, 217 F.3d 1038, 1041 (9th Cir. 2000).

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UNITED STATES V. AUBREY 5
allocates money to the tribe, such funds are then termed a
block grant.
The Navajo Nation receives the largest amount of
NAHASDA block grant funds in the country. The Navajo
Housing Authority (“NHA”), the Navajo tribal organization
designated to receive the block grant funds from HUD,2
received approximately ninety million dollars annually
between the years of 2000 and 2004. To be eligible to
receive NAHASDA block grant funds, the NHA must file an
annual Indian Housing Plan to specify how the funds are to
be used. Once the NHA’s Housing Plan is approved by
HUD, the NAHASDA funds are then allocated to the NHA.
However, even after the funds are allocated, they are not
immediately delivered to the NHA. Instead, the allocated
funds are only released by HUD when the NHA submits
requests, accompanied by supporting documentation, that
eligible work under the Housing Plan has been performed.
For example, after a roofer completes work on houses under
the NHA’s Housing Plan, the roofer submits a bill (either
directly or through a contractor) to the NHA. The NHA then
requisitions the funds from HUD, who releases the funds to
the NHA in the form of a draw. Those funds must then be
used to pay the subcontractor whose work supported the
requisition (in this example, the roofer). The funds cannot be
used for other purposes. In short, NAHASDA funds must be
spent solely on work that is (a) eligible under the statute,
(b) approved under the Indian Housing Plan, and (c) verified
as completed by the responsible tribal organization. 25
2 Tribal organizations, such as the NHA, authorized by tribal
governments to receive grant funds and to provide assistance for
affordable housing for Indians are known, under NAHASDA, as “tribally
designated housing entities.” 25 U.S.C. § 4103(22).

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UNITED STATES V. AUBREY 6
U.S.C. § 4111(g) (“[A]mounts provided under a grant under
this section may be used only for affordable housing activities
under subchapter II of this chapter that are consistent with an
Indian housing plan approved under section 4113 of this
title.”).
NHA does not undertake all housing projects on the
Navajo Nation Reservation on its own. Because of the
Reservation’s size and political diversity (the Reservation
covers over 25,000 square miles and is divided into 110
chapters, which are comparable to county governments), the
NHA delegated responsibility for requisitioning and
disbursing NAHASDA funds to a number of sub-grantees.
One such sub-grantee was the Fort Defiance Housing
Corporation (“FDHC”). The FDHC was a non-profit
organization (formed under the laws of the Navajo Nation)
and was delegated responsibility for the administration of
NAHASDA funds to provide housing to the Navajo people.
FDHC signed formal sub-grant agreements with NHA,
pledging to adhere to the annual Indian Housing Plans
submitted by NHA and also to abide by the governing federal
and Navajo Nation laws and regulations. In its sub-grant
agreement, FDHC understood and agreed that NAHASDA
block grant funds would be allotted “on a cost reimbursement
basis” through HUD’s line-of-credit system. To obtain
NAHASDA funds, FDHC had to submit a standard
requisition form (supported by relevant documents such as
bills and invoices), identifying the funding-eligible work
performed during the relevant period, requesting payment,
and agreeing to return any excess funds. NHA inspectors
would then verify that the claimed work had actually been
completed and approve FDHC’s request. Once the request
was approved, HUD would release the NAHASDA funds to
NHA, which would issue a check to FDHC. Once the funds

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UNITED STATES V. AUBREY 7
were in FDHC’s possession, it had a fiduciary duty to manage
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
William Aubrey is a contractor who owned a controlling
interest in, and actively managed and controlled, two
construction companies: Lodgebuilder, Inc., a Nevada for-
profit corporation, and Lodgebuilder Management, Inc., a
Montana corporation (collectively, “Lodgebuilder”). Aubrey
has had a long history of building houses on Indian lands
throughout the country. Aubrey’s conviction, at issue in this
appeal, resulted from his involvement in projects he
performed for the Navajo Nation from 2000 to 2004.
Between 1996 and 2004, Lodgebuilder and FDHC entered
into a series of development, construction, and consulting
agreements for various projects throughout the Navajo Nation
Reservation. In fact, Lodgebuilder’s and FDHC’s
relationship became so intertwined that FDHC’s Chief
Operations Officer, Marcus Tulley, testified at trial that
Aubrey, as the person managing and controlling
Lodgebuilder, had the real authority over FDHC’s finances
and financial management. By mid-2002, FDHC’s
relationship with Lodgebuilder had raised red flags with
HUD’s Southwest Office of Native American Programs
(“SWONAP”). SWONAP issued a report in August 2002
addressing various issues arising from that relationship,
ultimately finding that FDHC was in violation of fiscal
controls and was unable to substantiate that NAHASDA
funds were being used solely for authorized purposes.

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UNITED STATES V. AUBREY 8
Notwithstanding those findings, FDHC entered into a
renewed five-year agreement (the “Consultant Agreement”)
with Lodgebuilder in October 2002. The Consultant
Agreement stated that Lodgebuilder would provide
construction management services for FDHC’s projects,
including preparing the monthly payment requests for
approval by FDHC and NHA, distributing the NAHASDA
funds awarded to FDHC to the suppliers and contractors who
performed the work, and securing the third-party funding
needed to cover the full cost of the projects. As for
Lodgebuilder’s own compensation, the agreement specified
that Lodgebuilder would be paid like the other companies that
Lodgebuilder was regulating–on a line-item basis in
accordance with NAHASDA cost guidelines.
C. The Chilchinbeto project
Two months after entering into the Consultant
Agreement, NHA submitted its 2003 Indian Housing Plan to
HUD. The Indian Housing Plan requested $9.374 million in
NAHASDA funds for a housing development to be built in
Chilchinbeto, Arizona during the 2003 fiscal year. This
amount was in addition to $2.26 million in NAHASDA grant
funds that had been allocated during the 2002 fiscal year to
get the project started. In May 2003, the FDHC entered into
a sub-grant agreement with NHA whereby the FDHC agreed
to build 90 units at Chilchinbeto, utilizing the $11.6 million
in allocated NAHASDA funds. As directed by the Consultant
Agreement, FDHC delegated the management of the
Chilchinbeto project to Lodgebuilder (and thereby to
Aubrey).
Construction at Chilchinbeto began in the summer of
2003. Lodgebuilder prepared monthly requisition requests

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UNITED STATES V. AUBREY 9
that FDHC signed and submitted to NHA. NHA then verified
that the work had been completed, drew funds from its HUD
line of credit, and issued checks to FDHC. FDHC then issued
checks to Lodgebuilder, which Aubrey endorsed and
deposited into his joint money market account that he shared
with his wife, Brenda Todd. Through the relevant periods of
time, the NHA received $9,593,000 in NAHASDA funds, of
which $9,164,573 was deposited into Aubrey’s bank account.
Aubrey used his money market account both for
professional payments on the Chilchinbeto job and for
personal expenses.3 Thus, once the funds were deposited into
Aubrey’s account, it became extremely difficult to trace how
he was using the NAHASDA funds. He also transferred
money from the joint account to another personal account to
finance gambling debts and buy jewelry.
The commingling of NAHASDA funds with personal
finances did not seem to prevent Aubrey from paying the
subcontractors doing the work at Chilchinbeto during the
early phases of the job. However, starting in the spring of
2004, Aubrey’s longtime employee, Dale Rowton, heard
complaints that contractors were not being paid for the work
they had completed. After hearing the complaints, Rowton
asked Aubrey if the contractors could be paid. Aubrey told
Rowton not to release checks, because NHA had not paid
Lodgebuilder on the requested draws. However, contrary to
Aubrey’s statement to Rowton, NHA had (with a few
exceptions) paid all eligible work expenses listed in FDHC’s
requisitions totaling more than $9.1 million through June
2004. NHA’s payments were for completed work, such as
3 Both parties agree that Aubrey was not legally obligated to keep
NAHASDA funds separate from his other funds.

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UNITED STATES V. AUBREY 10
site electrical work, flooring, and stucco work; however,
Aubrey did not pay many of these companies.
The government points to the experience of Four States
Electric as its clearest example of Aubrey’s failure to use
NAHASDA requisitioned funds for their designated purpose.
In March 2004, Four States contacted Rowton to bid on
electrical work at Chilchinbeto. Rowton accepted Four
States’s bid and signed a contract with the company on behalf
of FDHC. Four States performed the agreed-upon work in
March and April 2004 and submitted timely bills to FDHC.
The ensuing requisitions reflected Four States’s performance
and requested the contracted bid of a total of $200,000 in
NAHASDA funds for site electrical work. On each occasion,
NHA issued checks containing the requested amounts to
FDHC, which passed the funds to Aubrey. Aubrey, in turn,
deposited those funds at his bank and moved them among his
various accounts. Aubrey used the funds to pay personal
expenses, including payments to two casinos totaling more
than $100,000 in May 2004 and another $50,000 payment to
the Paris Casino in June 2004. Yet neither FDHC nor Aubrey
(on FDHC’s behalf) paid Four States Electric.
After learning that FDHC failed to pay vendors and
contractors at Chilchinbeto, NHA terminated FDHC’s sub-
grant agreement and investigated the whereabouts of the
NAHASDA funds. When the finance officials were able to
review Lodgebuilder’s finances, NHA confirmed that Aubrey
had failed to pay numerous contractors and vendors for their
work at Chilchinbeto and could not verify all of
Lodgebuilder’s claimed expenditures as permissible. An
audit (conducted in the course of FDHC’s subsequent
bankruptcy) determined that Lodgebuilder had received $11.6
million in NAHASDA funds for the Chilchinbeto project in

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UNITED STATES V. AUBREY 11
fiscal years 2002 and 2003, but that Lodgebuilder continued
to owe $1,562,921 to vendors who had worked on the project.
The audit also concluded that, because Lodgebuilder had
received $11.6 million in NAHASDA funds but could only
verify $7,098,659 in expenses for the project, Lodgebuilder
should have had $4,501,341 in grant funds from which it
could have paid the subcontractors.
D. Aubrey’s Trial and Sentencing
In December 2012, a grand jury returned a second
superseding indictment charging Aubrey with (among other
counts) two counts (Counts Four and Five) of conversion and
misapplication of funds from a tribal organization, in
violation of 18 U.S.C. § 1163.
Aubrey’s trial began on April 9, 2013, and continued for
fifteen days. One of the prosecution witnesses was James
Hoogoian, a forensic auditor with the HUD’s Office of
Inspector General. Hoogoian introduced a series of charts
reflecting the movement of funds among Aubrey’s business
and personal accounts, following each NHA requisition
payment between July 2003 and June 2004. Hoogoian
prepared the charts by reviewing multiple bankers’ boxes
worth of documents and tracking the series of transactions
that consumed each deposit. When questioned by the
prosecutor, Hoogoian agreed that he followed a procedure
“similar in concept” to the “last-in-first-out” accounting
method. Aubrey objected to Hoogoian’s testimony, arguing
that Hoogoian was testifying as an expert even though he had
not been certified. The government responded that Hoogoian
was providing foundation for the charts to be introduced as
summary exhibits under Federal Rule of Evidence 1006,
which allows parties to “use a summary, chart, or calculation

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UNITED STATES V. AUBREY 12
to prove the content of voluminous writings . . . that cannot
be conveniently examined in court.” The district court
admitted the exhibits over Aubrey’s objection, and allowed
Aubrey a continuing objection to the testimony. The court
also denied Aubrey’s subsequent motion for a mistrial.
After the government rested its case, Aubrey moved for
a judgment of acquittal on Counts Four and Five pursuant to
Federal Rule of Criminal Procedure 29(a). The district court
subsequently denied the motion.
At the close of the trial, Aubrey objected to two of the
court’s proposed jury instructions. Proposed Jury Instruction
No. Fifteen, which addressed Count Four, outlined in part:
In order to convict defendant AUBREY of
this offense, the government must prove each
of the following elements beyond a reasonable
doubt:
First, that during the period from May 20,
2004, to on or about June 8, 2004, defendant
Aubrey knowingly and wilfully converted to
his own use or wilfully misapplied money or
funds; and
Second, that those funds or that money
belonged to an Indian tribal organization or
was intrusted to the custody or care of an
agent of an Indian tribal organization.
Proposed Jury Instruction No. Sixteen, which was very
similar, outlined in part:

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UNITED STATES V. AUBREY 13
In order to convict defendant AUBREY of
the offense charged in Count Five, the
government must prove each of the following
elements beyond a reasonable doubt:
First, that on or about June 24, 2004,
defendant AUBREY knowingly and willfully
embezzled stole, converted to his own use or
misapplied money or funds; and
Second, that those funds or that money
belonged to an Indian tribal organization or
was intrusted to the custody or care of an
agent of an Indian tribal organization.
Aubrey objected to these instructions on the basis that the
instruction split the crime into two elements rather than three,
as Aubrey had requested in his proposed instructions. When
objecting, Aubrey’s counsel explained his objection,
reasoning:
[T]he objection there would be that the . . .
first element is the specific intent crimes. . . .
[I]n this case it’s either conversion or
misapplication. Then not every conversion or
misapplication is a crime under the statute. It
has to be the money or funds belonging to an
Indian Tribal Organization. And then the
third element is the jury has to find as a matter
of fact that it is an Indian Tribal Organization.
So that’s why I set it out in three elements.
Thus, Aubrey’s requested jury instructions read, in relevant
part:

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UNITED STATES V. AUBREY 14
Second, those monies and funds belonged to
the Navajo Housing Authority and its
subgrantee, Fort Defiance Housing
Corporation, as agents of the Navajo Nation,
rather than belonged to defendant William
Aubrey or someone else; and
Third, the Navajo Housing Authority and its
subgrantee Fort Defiance Housing
Corporation were Indian tribal organizations.
The district court denied Aubrey’s objection, reasoning that
“the Court believes that the jury is adequately instructed with
the combination instruction that includes a definition of
Indian Tribal Organization later on in the instructions.”
Accordingly, the court gave its Proposed Instructions Nos.
Fifteen and Sixteen. After deliberation, the jury found
Aubrey guilty on Counts Four and Five. Aubrey renewed his
Rule 29 motion, which the district court again denied.
On September 10, 2013, the district court sentenced
Aubrey to imprisonment for fifty-one months, to be followed
by three years of supervised release. In calculating Aubrey’s
sentence, the court applied a sixteen-level increase pursuant
to the United States Sentencing Guidelines Manual
(“U.S.S.G.”) § 2B1.1(b)(1)(I) (2012) for loss more than
$1,000,000 but not more than $2,500,000, and a two-level
enhancement for abuse of trust pursuant to U.S.S.G. § 3B1.3.
Aubrey appeals.
DISCUSSION
Aubrey presents four challenges to his conviction and
sentence. First, Aubrey argues that the district court erred by

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UNITED STATES V. AUBREY 15
denying his motion for judgment of acquittal, because
(a) payments for verified, certified, and approved
construction progress do not belong to an Indian tribal
organization or are not held in trust after they are paid out,
and (b) there was insufficient evidence that Aubrey converted
or misapplied housing grant funds. Second, Aubrey argues
that the district court erred by admitting Hoogoian’s
testimony as summary testimony and by admitting the
summary exhibits, because he was not certified as an expert
witness. Third, Aubrey argues that the district court erred in
its jury instructions by failing to adequately guide the jury’s
deliberations and omitting Aubrey’s proposed theory of
defense language. Fourth, Aubrey argues that the district
court erred at sentencing by applying both the sixteen and
two-level sentencing increases. We address each contention
in turn.
I.
Aubrey argues that the government failed to prove all of
the elements of 18 U.S.C. § 1163. Section 1163 allows for
the conviction of a person 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 or intrusted to the custody or
care of any officer, employee, or agent of an
Indian tribal organization[.]
Thus, the government had to prove (1) Aubrey knowingly and
willfully embezzled, stole, converted to his own use, or

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UNITED STATES V. AUBREY 16
misapplied money or funds and (2) those funds or that money
belonged to an Indian tribal organization or was intrusted to
the custody or care of an agent of an Indian tribal
organization.
We “review de novo the district court’s denial of a
Federal Rule of Criminal Procedure 29 motion for judgment
of acquittal.” United States v. Wiggan, 700 F.3d 1204, 1210
(9th Cir. 2012).
A. Funds belonging to any Indian Tribal Organization
Aubrey argues that the money he received from FDHC
ceased being funds “belonging to any Indian tribal
organization or intrusted to the custody or care of any officer,
employee, or agent of an Indian tribal organization” when the
funds were disbursed to him. According to Aubrey, because
the disbursements were made after work had been completed
and verified by the NHA, those funds constituted
reimbursement for the work he had already completed; the
tribe could not accept completed work and also continue to
own the funds it used to pay for the work.
Although creative, Aubrey’s contention is not supported
by legal authority.4 Instead, tribal disbursements continue to
belong to the NHA, a tribal organization, for the purposes of
18 U.S.C. § 1163, because the tribe exercises supervision and
control over the funds and their ultimate use even after they
have been disbursed.
4 Aubrey does not cite to any cases, Ninth Circuit or otherwise, to
support this argument.

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UNITED STATES V. AUBREY 17
We have not previously defined what it means for funds
to “belong[] to any Indian tribal organization.” All of our
cases dealing with § 1163 have either dealt with situations
where a tribal official (who was intrusted funds as an agent of
the tribe) embezzled those funds, see, e.g., United States v.
Coin, 753 F.2d 1510, 1510–11 (9th Cir. 1985); United States
v. Brame, 657 F.2d 1090, 1091 (9th Cir. 1981), or where the
defendant actually stole tribal property, see United States v.
Tidwell, 191 F.3d 976, 978–79 (9th Cir. 1999) (dealing with
the theft of tribal masks). In neither of these lines of cases
did we evaluate what it meant for funds or property to
“belong[] to any Indian tribal organization,” because it was
clear that the property at issue belonged to an Indian tribal
organization.
At trial, the government specifically chose not to argue
that Aubrey was an agent of the tribe who had been intrusted
with tribal funds. The government admits as much in its
appellate briefing, instead reasoning that “it is ‘extremely
unlikely’ that the jury was confused as to the relevant ‘agent’
of the Navajo Nation when . . . the jury instructions listing the
elements of the Section 1163 offense identified NHA and
FDHC as the agents, and the government did not urge
conviction on an Aubrey-as-an-agent theory.”5 Therefore, the
government cannot rely on the entrustment language in
§ 1163 to support Aubrey’s conviction, unless the
government had previously argued that Aubrey misapplied
and willfully converted funds while they were intrusted to the
5 The jury instructions read, in relevant part, “defendant . . . did
knowingly and willfully convert to his own use and misapply moneys and
funds . . . intrusted to the custody and care of the Navajo Housing
Authority and Fort Defiance Housing Corporation as agents of the Navajo
Nation.”

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UNITED STATES V. AUBREY 18
NHA and FDHC. The government has never made that
contention. Instead, all of the government’s contentions
concerning Aubrey’s misdeeds have to do with his use of the
funds once they were disbursed to him. Therefore, for
Aubrey’s conviction to stand, the funds must have continued
to belong to the NHA and FDHC after they were disbursed,
when Aubrey willfully converted or misapplied them.
To determine the meaning of the phrase “belonging to any
Indian tribal organization,” we look to the ordinary meaning
of the phrase “belonging to.” See Metro One Telecomms.,
Inc. v. C.I.R., 704 F.3d 1057, 1061 (9th Cir. 2012) (“When
interpreting a statute, we must start with the language of the
statute. Moreover, ‘[i]n the absence of an indication to the
contrary, words in a statute are assumed to bear their
ordinary, contemporary, common meaning.’” (alteration in
original) (citations omitted)). “Belong” is commonly defined
as “to be the property of a person or thing.” Belong,
Webster’s New International Dictionary (3rd ed. 1993); see
also Belong, Black’s Law Dictionary (9th ed. 2009)
(providing the same definition). Therefore, § 1163
criminalizes a defendant’s “embezzl[ing], steal[ing],
knowingly convert[ing] to his use or the use of another,
willfully misappl[ying], or willfully permit[ing] to be
misapplied” the property of an Indian tribal organization.
We have previously explored what it means to be
“property of” in a related context. The general federal theft
statute, 18 U.S.C. § 641 (upon which § 1163 was modeled),
punishes:
[w]hoever embezzles, steals, purloins, or
knowingly converts to his use or the use of
another, or without authority, sells, conveys or

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UNITED STATES V. AUBREY 19
disposes of any record, voucher, money, or
thing of value of the United States or of any
department or agency thereof, or any property
made or being made under contract for the
United States or any department or agency
thereof[.]
Id.; see Chilkat Indian Vill. v. Johnson, 870 F.2d 1469, 1472
(9th Cir. 1989). When determining whether funds stolen or
embezzled were “of the United States,” we have held that this
requirement was satisfied when the United States had “‘title
to, possession of, or control over’ the funds involved.” See
United States v. Kranovich, 401 F.3d 1107, 1113 (9th Cir.
2005) (quoting United States v. Faust, 850 F.2d 575, 579 (9th
Cir. 1988)). Further, we have “also looked to the amount of
control the government has retained over funds when seeking
to determine whether the funds are government funds within
the purview of § 641.” Faust, 850 F.2d at 579. In United
States v. Von Stephens, we held that the federal government
“has sufficient interest in its funds, even if commingled [with
state and county funds], where it exercises supervision and
control over the funds and their ultimate use.” 774 F.2d
1411, 1413 (9th Cir. 1985) (per curiam).
We now adopt the standards from Kranovich, Faust, and
Von Stephens for use in the § 1163 context. Tribal funds
disbursed continue to be “property belonging to any Indian
tribal organization” as long as the tribe maintains “title to,
possession of, or control over them.” Kranovich, 401 F.3d at
1113 (citation omitted). Thus, funds that have been
disbursed, even as reimbursement for completed work,
continue to belong to the tribal organization if the tribal
organization “exercises supervision and control over the

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UNITED STATES V. AUBREY 20
funds and their ultimate use.” Von Stephens, 774 F.2d at
1413.
Utilizing this standard, it is clear that the NHA exercised
sufficient control over the grant funds to conclude that the
funds belonged to the tribal organization. First, before grant
funds could be released by HUD, NHA was required to verify
that actual, reimbursable work had already been completed.
To comply with this requirement, the NHA reviewed all
documents and invoices submitted by FDHC and Aubrey, and
conducted site inspections before any disbursements were
made. Prior approval of fund disbursements indicates
supervision and control. See United States v. Johnson,
596 F.2d 842, 846 (9th Cir. 1979) (“[U]rban funds granted to
the agencies . . . should be utilized under the strictest of
supervision, including submission by the union of verified
payrolls before additional sums are advanced by the
redevelopment agency.”). Second, NHA’s requisition form
(the form submitted by Aubrey for all grant fund
reimbursements) indicated NHA’s continued interest in the
funds. The requisition form required the following
certification:
I certify the data reported and funds requested
on this voucher are correct and the amount
requested is not in excess of immediate
disbursement needs for this program. In the
event the funds provided become more than
necessary, such excess will be promptly
returned (via NHA) as directed by HUD.
Thus, NHA’s form made it clear that, even after funds were
disbursed, NHA retained an interest in the funds. Third,
the sub-grant agreement required FDHC (and

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UNITED STATES V. AUBREY 21
Aubrey/Lodgebuilder who, through the Consultant
Agreement, stepped into FDHC’s shoes with regard to
managing the NAHASDA funds) to comply with NHA’s
policies and submit numerous reports to NHA. Additionally,
the sub-grant agreement gave NHA the authority to audit and
demand accountings from FDHC and its sub-grantees. The
ability to audit and require periodic reporting indicates
supervision and control. See Von Stephens, 774 F.2d at 1413
(reasoning that audit and reporting requirements, as well as
power to examine fund recipient’s bank accounts, constituted
supervision and control); United States v. Gibbs, 704 F.2d
464, 465–66 (9th Cir. 1983) (per curiam) (finding supervision
and control when periodic reports and audits were required).
Trial testimony confirmed that NHA exercised its audit and
investigation authority in response to Aubrey’s suspected
misuse of the grant funds. The testimony also confirmed that
NHA eventually obtained records from Lodgebuilder in an
effort to account for misappropriated funds. Taken together,
a reasonable jury could find (a) that the funds
misappropriated or converted by Aubrey belonged to a tribal
organization, even if the funds were considered
reimbursement for work already completed; and (b) that NHA
had sufficient supervision and control of the NAHASDA
funds.
B. Sufficiency Challenge
Aubrey was convicted of two counts of embezzlement or
misapplication under 18 U.S.C. § 1163. Count Four focused
on the period from May 20, 2004 to June 8, 2004, and Count
Five dealt with events on or about June 24, 2004. Aubrey
argues that there was insufficient evidence to convict him of
either Count. “In reviewing the sufficiency of the evidence,
[the court] construe[s] the evidence in the light most

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UNITED STATES V. AUBREY 22
favorable to the prosecution, and then ask[s] whether any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Wiggan, 700 F.3d
at 1210 (quoting United States v. Nevils, 598 F.3d 1158, 1161
(9th Cir. 2010)) (internal quotation marks omitted). “Because
the government does not need to rebut all reasonable
interpretations of the evidence that would establish the
defendant’s innocence, or ‘rule out every hypothesis except
that of guilt beyond a reasonable doubt’ . . . , a reviewing
court may not ask whether a finder of fact could have
construed the evidence produced at trial to support acquittal.”
Nevils, 598 F.3d at 1164 (quoting Jackson v. Virginia,
443 U.S. 307, 326 (1979)). Therefore, we focus on the
evidence that, when taken in the light most favorable to the
prosecution, supports Aubrey’s conviction.
1. Aubrey’s Count Four Conviction
Taken in the light most favorable to the prosecution, the
non-payment of funds to Four States Electric presents
sufficient evidence such that any rational trier of fact could
have convicted Aubrey on Count Four. Four States
performed the electrical work on the Chilchinbeto project in
March and April 2004 and submitted timely bills to FDHC.
The ensuing requisitions reflected Four States’s performance
and requested a total of $200,000 in NAHASDA funds for
site electrical work. On each occasion, NHA issued checks
containing the requested amounts to FDHC, 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 expenses, including payments to
two casinos totaling more than $100,000 in May 2004. Yet
neither FDHC nor Aubrey (on behalf of FDHC) paid Four

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UNITED STATES V. AUBREY 23
States Electric. This pattern was repeated for many other
subcontractors who worked on the Chilchinbeto project.
As discussed above, the NAHASDA funds distributed to
Aubrey belonged to the NHA, a tribal organization, because
it had the authority to supervise and control the funds even
after they had been delivered to Aubrey. Witness testimony
established that Aubrey was not free to use the NAHASDA
funds as he saw fit, but was obligated to make sure they were
delivered to the subcontractors who had requisitioned the
funds. Despite the fact that funds had been delivered to
Aubrey to pay Four States for its site electrical work, Four
States never received payment from either Aubrey or FDHC.
In the same period of time, Aubrey made large payments
from the same account to satisfy his personal gambling debts.
When combined with evidence that Aubrey lied when
confronted about the non-payment, his conceded failure to
put the NAHASDA funds to their designated purpose
constitutes sufficient evidence that could allow a rational trier
of fact to conclude, beyond a reasonable doubt, that Aubrey
had embezzled or misapplied those funds.
Both at trial and before this court, Aubrey provided
various alternative explanations for why he was authorized to
retain NAHASDA funds for his own use. He argued that
(1) he spent $690,000 of his own money for the Chilchinbeto
project and was therefore entitled to keep the NAHASDA
funds as reimbursement; (2) the government was not able to
show that he was using NAHASDA funds to pay for his own
personal expenses; and (3) the Chilchinbeto project was
underfunded and the reason subcontractors were not getting
paid was because of under funding, not misappropriation.
However, none of these arguments explain why money paid
to Aubrey (for the sole purpose of paying specific

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UNITED STATES V. AUBREY 24
subcontractors) never made it to the subcontractors. If
Aubrey were paying the subcontractors from his own funds
and then keeping the NAHASDA reimbursement funds as he
claims, the subcontractors still would have been getting paid.
Even if the project were underfunded, the subcontractors
would have at least been paid up to the NAHASDA limit for
their work, and they would only be unpaid to the extent that
the NAHASDA funds were insufficient to cover their
submitted invoices. Instead, the evidence showed that
NAHASDA funds were being used by Aubrey, and
subcontractors were not receiving payment. This evidence
was sufficient to allow any rational jury to conclude, beyond
a reasonable doubt, that Aubrey was misappropriating the
tribal funds.
2. Aubrey’s Count Five Conviction
Count 5 dealt with payments delivered to Aubrey in June
2004. The evidence showed that (1) FDHC requested
$133,700 in payment for work prior to June 1 on streets
($84,000), site electrical ($36,000), and gutters ($13,000);
(2) NHA issued a check in the requested amount; (3) Aubrey
deposited the check into an FDHC account at his bank on
June 21, 2004; and (4) the next day, Aubrey transferred
$45,000 from that FDHC account to the joint Aubrey-Todd
account. Two days later, on June 24, Aubrey cut a $50,000
check to the Paris Casino from his separate personal account,
and the bank covered that check by sweeping in $25,400
attributable to the recently deposited grant funds. These
actions followed Aubrey’s pattern of depositing grant money
into his personal accounts and then, within days, paying out
large-scale expenses. Taken in the light most favorable to the
prosecution, this evidence supported the jury’s reasonable
inference that Aubrey was putting grant funds earmarked for

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UNITED STATES V. AUBREY 25
another purpose to his personal use or was, at the very least,
misappropriating the funds to the payment of parties other
than the subcontractors whose invoices supported the
requisitions.
Once again, although Aubrey presents alternative
explanations for why he was entitled to keep the funds
requisitioned in June, the jury heard his explanations and
rejected them. Because sufficient evidence was presented to
support his conviction, the district court did not err in denying
Aubrey’s Rule 29 motion for acquittal.
II.
Aubrey argues that (1) the district court erred by not
requiring Hoogoian to be certified as an expert witness and
compelling expert disclosures, and (2) the district court erred
by allowing Hoogoian’s summary charts to be admitted into
evidence.
A. Expert Certification
A trial court’s decision to admit or exclude expert
testimony is reviewed for abuse of discretion. United States
v. Gonzales, 307 F.3d 906, 909 (9th Cir. 2002); United States
v. Laurienti (Laurienti I), 611 F.3d 530, 547 (9th Cir. 2010).
Under the abuse of discretion standard, if the district court
identified the correct legal rule, then its ruling must be
affirmed unless the “court’s application of the correct legal
standard was illogical, implausible, or without support in
inferences that may be drawn from the facts in the record.”
United States v. Redlightning, 624 F.3d 1090, 1110 (9th Cir.
2010).

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UNITED STATES V. AUBREY 26
Aubrey argues that the district court was required to
certify Hoogoian as an expert witness, solely because 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 argues broadly that “‘last-in-first-
out’ is neither a Federal Rule of Evidence 1006 summary nor
an example of lay witness opinion proper under Federal Rule
of Evidence 701.”
In addressing Aubrey’s objection and motion for mistrial,
the court ruled:
I don’t think anything that he’s testified to
would call for expert opinion testimony or
involve expert opinion testimony under 702.
All of his testimony’s been under 701,
lay–laywitness testimony. And he may be an
expert, but he hasn’t testified as an expert.
He’s testifying to facts of which he had
personal knowledge. And he [is] subject to
cross-examination on his . . . conclusions as to
what those expenses were. . . . [P]ersonal
knowledge would include his own
investigation as to the payees and he’s subject
to cross-examination on that. Personal
knowledge as to the checks that he saw.
The court then asked whether all of the source material, on
which Hoogoian was basing his testimony, had been provided
to Aubrey. Aubrey answered, “It was produced in
discovery.” Further, when the government asked Hoogoian
about other forms of analysis that he may have used when
creating his summary, the district court recognized that the
question was “get[ting] into the area of kind of dealing with

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UNITED STATES V. AUBREY 27
expert testimony” and prevented the government from
pursuing that line of questioning.
Hoogoian was not required to be certified as an expert.
Hoogoian testified about his own personal investigation of
FDHC and Lodgebuilder in his capacity as a HUD auditor in
accordance with Federal Rule of Evidence 701. Although
Hoogoian might have been eligible to be certified as an
expert, the district court properly restricted his testimony to
the areas in which he had personal knowledge (the
documents, investigation, and the methods he used to prepare
his summary) and prevented him from providing in-depth
analysis of various accounting methods. Simply because
Hoogoian stated that he used “last-in-first-out” to construct
his summary charts did not transform his testimony into
expert testimony. Instead, Hoogoian was merely providing
foundation for the evidence he was presenting. Further, when
Hoogoian was prompted by the prosecution to discuss the
merits of the “last-in-first-out” accounting method, the
district court properly prevented Hoogoian from answering,
as that sort of testimony could stray into the realm of expert
testimony. Accordingly, two passing references to the “last-
in-first-out” method (when explaining his own procedure in
constructing the charts) is not sufficient to require the district
court to certify Hoogoian as an expert witness. See Teen-Ed,
Inc. v. Kimball Int’l, Inc., 620 F.2d 399, 403 (3d Cir. 1980)
(“The fact that Zeitz might have been able to qualify as an
expert witness on the use of accepted accounting principles
in the calculation of business losses should not have
prevented his testifying on the basis of his knowledge of
appellant’s records about how lost profits could be calculated
from the data contained therein.”).

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UNITED STATES V. AUBREY 28
B. Summary Evidence
“It is long established that, where records are voluminous,
a summary, either oral or written, may be received 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 1006. See
Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d
505, 515 n.9 (9th Cir. 1985) (holding that a “self-calculated”
and “unverified” summary was properly admitted when the
underlying records supporting the summary were made
available to the other party and where the party was given
“ample opportunity to cross-examine” the person who
oversaw the preparation of the summary). Rule 1006 requires
that “[t]he proponent must make the originals or duplicates
[of the voluminous writings] available for examination or
copying, or both, by other parties at a reasonable time and
place.” We 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).
When preparing his summary testimony and charts,
Hoogoian sifted through multiple bankers’ boxes worth of
documents concerning deposits and withdrawals from
Aubrey’s bank accounts. Under the plain language of Rule
1006, the government was permitted to “use a summary,
chart, or calculation to prove the content of voluminous
writings, recordings, or photographs that cannot be
conveniently examined in court.” Multiple bankers’ boxes of
bank statements constitute the type of materials anticipated
by Rule 1006. Further, the district court ensured that the
government made the documents underlying the summary
available to Aubrey, as Aubrey admitted they had done.

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UNITED STATES V. AUBREY 29
Therefore, nothing suggests that the government failed to
satisfy Rule 1006.
The district court did not abuse its discretion by allowing
Hoogoian’s summary charts to be admitted into evidence. In
United States v. Rizk, we held that summary evidence is
admissible as evidence if “the underlying materials upon
which the summary is based (1) are admissible in evidence
and (2) were made available to the opposing party for
inspection.” 660 F.3d 1125, 1130 (9th Cir. 2011).
Additionally, in Anekwu, we noted that “we have not
articulated a bright-line rule against admission of summary
charts as evidence.” 695 F.3d at 981–82 (citation and
alterations omitted). In fact, the district court has “discretion
under Federal Rule of Evidence 611(a) to admit summary
exhibits for the purpose of assisting the jury in evaluating
voluminous evidence.” Id. at 982 (citation and alterations
omitted). We further concluded in Anekwu that “we need not
embrace or condemn the procedure followed by the district
court,” because “the error is harmless given admissibility of
the underlying data, lack of objection to accuracy of the
summary, and the limiting instruction.” Id. (citation omitted).
Aubrey never objected to the accuracy of the summaries
at trial. Instead, he merely objected to Hoogoian’s testimony,
because he thought that Hoogoian should have been required
to be certified as an expert. On appeal, Aubrey now argues
that admission of the summary charts into evidence was error.
However, the underlying bank account records were
admissible6 and delivered to Aubrey in discovery. Therefore,
under Rizk, the district court did not abuse its discretion in
allowing the summary charts to be entered into evidence.
6 Aubrey has not argued that the records were inadmissible.

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UNITED STATES V. AUBREY 30
Further, even if admitting the summary charts into evidence
were error, that error was harmless under Anekwu. The
district court provided the Ninth Circuit’s Pattern Instruction
4.16 (as a limiting instruction) that said “[c]ertain charts and
summaries have been admitted in evidence,” those “[c]harts
and summaries are only as good as the underlying supporting
material,” and jurors should “give them only such weight as
you think the underlying material deserves.” Therefore,
“given [the] admissibility of the underlying data, lack of
objection to [the] accuracy of the summary, and the limiting
instruction,” any error was harmless. See Anekwu, 695 F.3d
at 82.
III.
Aubrey argues that the district court erred by providing a
jury instruction containing the language, “Second, those
funds or that money belonged to an Indian tribal organization
or was intrusted to the custody or care of an agent of an
Indian tribal organization.” Aubrey argues that the district
court should have instead used his proposed instruction that
read, “Second, those monies and funds belonged to the
Navajo Housing Authority and its subgrantee Fort Defiance
Housing Authority, as agents of the Navajo Nation, rather
than belonged to defendant William Aubrey or someone else.”
On appeal, Aubrey argues that the given jury instruction
(1) failed to address his theory of defense that the
NAHASDA funds belonged to Aubrey or subcontractors, not
the NHA or FDHC, and (2) allowed the jury to convict
Aubrey under an agency theory. At trial, although Aubrey
objected to the instruction, his objection merely argued that
the instruction should have been split into three elements
instead of two. He did not object on the ground that the
instruction did not cover his theory of defense. Because

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UNITED STATES V. AUBREY 31
Aubrey failed to “state with adequate specificity the grounds
for an objection to a jury instruction before the jury retires,”
we review this claim for plain error.7 United States v. Hofus,
598 F.3d 1171, 1175–76 (9th Cir. 2010).
“A defendant is entitled to have the judge instruct the jury
on his theory of defense, provided that it is supported by law
and has some foundation in the evidence.” United States v.
Mason, 902 F.2d 1434, 1438 (9th Cir. 1990), overruled on
other grounds by Dixon v. United States, 548 U.S. 1 (2006).
“[B]ut it is not reversible error to reject a defendant’s
proposed instruction . . . if other instructions, in their entirety,
adequately cover the defense theory.” Id.
The district court did not err by giving its jury instruction
rather than Aubrey’s proposed instruction. The jury
instructions adequately covered Aubrey’s theory of defense.
Section 1163 allows for a conviction if the defendant
“embezzles, steals, knowingly converts to his use or the use
of another, willfully misapplies, or willfully permits to be
misapplied,” funds “belonging to any Indian tribal
organization or intrusted to the custody or care of any officer,
employee, or agent of an Indian tribal organization.” The
jury instruction provided by the court followed the statute
closely. The court’s jury instructions then defined
conversion, willful misapplication, embezzlement, and
stealing. Each of these definitions included the phrase “of
another” or “belongs to another.” Thus, under the
instructions provided by the court, it would have been clear
7 To satisfy the plain error standard of review, “[t]here must be an ‘error’
that is ‘plain’ and that ‘affect[s] substantial rights.’” United States v.
Olano, 507 U.S. 725, 732 (1993) (quoting Fed. R. Crim. Proc. 52(b))
(second alteration in original).

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UNITED STATES V. AUBREY 32
to the jury that it could not convict Aubrey if it found that the
funds belonged to him. The instructions also provided that
Aubrey could not be convicted if the jury found that the funds
belonged to the subcontractors. Instructions fifteen and
sixteen only allowed for Aubrey’s conviction if the jury
found that the funds “belonged to an Indian tribal
organization or was intrusted to the custody or care of an
agent of an Indian tribal organization.” Under the plain
meaning of this instruction, if the jury found that the funds
belonged to subcontractors, it could not convict Aubrey,
because then the funds would not belong to a tribal
organization. Nothing would be gained by adding Aubrey’s
proposed language “rather than belonged to defendant
William Aubrey or someone else.” Therefore, the district
court did not err by providing the instructions it did to the
jury. See United States v. Keyser, 704 F.3d 631, 641–42 (9th
Cir. 2012) (“[A] defendant is entitled to have his theory fairly
and adequately covered by the instructions, but is not entitled
to an instruction in a particular form.”). Without error, there
can be no plain error.
The court’s jury instruction also did not allow Aubrey’s
conviction on an improper agency theory. Section 1163
expressly allows conviction if the jury finds that the funds
were intrusted to an agent of an Indian tribe. The jury
instructions provided by the court specifically identified “the
Navajo Housing Authority and Fort Defiance Housing
Corporation as agents of the Navajo Nation.” Therefore, the
jury would have reasonably understood that NHA and FDHC
were the applicable agents under instructions fifteen and
sixteen. The jury instructions were not “misleading or
inadequate to guide the jury’s deliberations,” because they
properly stated the law and expressly identified the basis
upon which the government sought conviction. See United

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UNITED STATES V. AUBREY 33
States v. Johnson, 680 F.3d 1140, 1147 (9th Cir. 2012)
(quoting United States v. Holmes, 229 F.3d 782, 786 (9th Cir.
2000) (internal quotation marks omitted)). Thus, the district
court did not commit error, plain or otherwise, in providing
the jury the instructions that it did.
IV.
Aubrey challenges two sentencing enhancements that the
district court imposed: (1) a sixteen-level increase pursuant to
U.S.S.G. § 2B1.1(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. § 3B1.3.
A. Sixteen-level increase
We review a district court’s factual calculation of the
amount of loss under the Guidelines for clear error. United
States v. Stargell, 738 F.3d 1018, 1024 (9th Cir. 2013). “A
reviewing court must ask whether, ‘on the entire evidence,’
it is ‘left with the definite and firm conviction that a mistake
has been committed.’” Id. (alterations omitted) (quoting
Easley v. Cromartie, 532 U.S. 234, 242 (2001)).
Looking at all of the evidence in this case, the district
court did not clearly err by finding a loss more than $1
million, but not more than $2.5 million. When making its
sentencing determination, the district court pointed to two
measures, both of which indicated a loss greater than $1
million but less than $2.5 million. The district court
reasoned:
I have concluded that because of the failure to
pay contractors for whom funds had been

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UNITED STATES V. AUBREY 34
requisitioned, there was a cascade of
consequences including the fact that NHA had
to take steps at that point–once they learned
that at least one contractor hadn’t been paid
with requisition monies, they had to pull the
plug, and that caused consequential damages
that exceeded $1 million. The NHA figure is
2.2 million.
The district court then noted that it “put some stock in
Hoogoian[‘s] analysis, but [it didn’t] rest [its] decision
entirely on that in finding that the loss amount was more than
$1 million but less than $2,500,000.” Hoogoian’s analysis
indicated that $1,989,339 of NAHASDA funds were spent for
Aubrey’s personal use. Other evidence, presented at trial also
supports the enhancement. The FDHC bankruptcy audit
indicated that Lodgebuilder owed $1,562,921 to contractors
who had worked on the Chilchinbeto project and that
Lodgebuilder should have had access to $4,501,341 in
allocated NAHASDA grant funds to pay those contractors.
However, the NAHASDA funds were not used for their
designated purpose. Thus, even though Aubrey presents
alternative theories about why the amount of loss should be
less, the district court’s finding is not clearly erroneous. See
United States v. Reed, 80 F.3d 1419, 1424 (9th Cir. 1996)
(“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly
erroneous.”) (quoting Anderson v. City of Bessemer, 470 U.S.
564, 574 (1985)).
B. Two-level enhancement
The Guidelines prescribe a two-level enhancement “[i]f
the defendant abused a position of public or private trust . . .

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UNITED STATES V. AUBREY 35
in a manner that significantly facilitated the commission or
concealment of the offense.” U.S.S.G. § 3B1.3.
As a preliminary matter, we first address Aubrey’s
contention that the enhancement in § 3B1.3 cannot apply in
his case, because an abuse of trust or skill is included in the
offense of his conviction. We review this argument de novo,
because it involves interpretation § 3B1.3 of the Sentencing
Guidelines. See United States v. Gomez-Leon, 545 F.3d 777,
782 (9th Cir. 2008). Section 3B1.3 provides:
If the defendant abused a position of public or
private trust, or used a special skill, in a
manner that significantly facilitated the
commission or concealment of the offense,
increase by 2 levels. This adjustment may not
be employed if an abuse of trust or skill is
included in the base offense level or specific
offense characteristic.
(emphasis added). According to Aubrey, the second sentence
of § 3B1.3 precludes its application to his case, because the
offense he was convicted of included “an abuse of trust or
skill.” However, Aubrey misinterprets § 3B1.3. In Laurienti
I, this court clarified, “The [abuse-of-trust] enhancement is
inapplicable only if the base offense level necessarily includes
an abuse of trust, regardless whether the defendant’s offenses
of conviction include an abuse of trust.” 611 F.3d at 556
(alteration in original). Therefore, it is the base offense level
that matters, not the offense of conviction. Here, the base
offense level of Aubrey’s charges was derived from U.S.S.G.
§ 2B1.1. In United States v. Ajiboye, we held:

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UNITED STATES V. AUBREY 36
Ajiboye was assigned a base offense level of
4 under Section 2B1.1(b)(1) (“Larceny,
Embezzlement, and Other Forms of Theft”).
This provision of the Guidelines does not
include “an abuse of trust or skill” in it.
Ajiboye’s two-level enhancement for abuse of
a position of trust thus cannot be attacked on
that basis.
961 F.2d 892, 895 n.4 (9th Cir. 1992). Under Ajiboye, the
base offense level in Section 2B1.1 does not include an abuse
of trust or skill. Therefore, Aubrey’s preliminary argument
fails.
We now address the district court’s application of § 3B1.3
to the facts of Aubrey’s case. We review a district court’s
application of an abuse-of-trust enhancement under a two-
step analysis. See United States v. Laurienti (Laurienti II),
731 F.3d 967, 973 (9th Cir. 2013). First, we determine
“[w]hether a defendant acted from a ‘position of trust’ as
defined by the Guidelines” under de novo review. Id. Then,
“[i]f we decide that the defendant held a position of trust, we
review for clear error the [district] court’s decision whether
the defendant’s abuse of his position significantly facilitated
the offense.” Id.
Turning to the first step of the “abuse of trust” analysis,
Aubrey was in a position of trust. “[T]he presence or lack of
‘professional or managerial discretion’ represents the decisive
factor in deciding whether a defendant occupied a position of
trust.” Id. (quoting United States v. Contreras, 581 F.3d
1163, 1166 (9th Cir. 2009)). “A defendant has this discretion
when, because of his or her special knowledge, expertise, or
managerial authority, he or she is trusted to exercise

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UNITED STATES V. AUBREY 37
substantial discretionary judgment that is ordinarily given
considerable deference.” Id. (citation and alterations omitted).
Aubrey argues that “[w]hile [he] had professional and
managerial discretion with respect to his private for-profit
company Lodgebuilder, he did not have that same position
within FDHC or NHA to warrant this enhancement.” This
argument is contradicted by the evidence presented at trial.
Trial evidence supported the conclusion that FDHC delegated
financial management of the Chilchinbeto project to Aubrey’s
company, that his company then stepped into the shoes of
FDHC, and that Aubrey had “the real authority” at FDHC,
because he “handle[d] all of the finances.” The district court
looked at these facts and concluded:
This case is more than a simple case of
misapplication. It involves a person who was
really controlling the entire operations of a
nonprofit and combining millions of dollars
in–running millions of dollars through a
personal account, combining it with trust
monies, and then gambling and doing the
other things that were evidenced during the
trial.
Reviewing the evidence of this case de novo, we conclude
that the district court did not err by concluding that Aubrey
occupied a position of trust.
Under the second prong, the district court found that
Aubrey’s position of trust facilitated the crime. This finding
is reviewed for clear error. Id. We conclude that the district
court’s finding was not clearly erroneous. The evidence
showed that FDHC handed Aubrey millions in grant funds
and exercised little oversight as he shifted the funds among

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UNITED STATES V. AUBREY 38
the various accounts he controlled. In fact, Aubrey (rather
than FDHC) controlled the FDHC’s financial records sought
by NHA officials when they started investigating the reported
non-payments. That FDHC really had no idea what Aubrey
was “up to” indicates that he was in a position of trust and
used that position to facilitate or conceal the mismanagement
of the NAHASDA grant funds. Thus, we conclude that the
district court’s finding that Aubrey’s position of trust
facilitated the commission of this crime was not clearly
erroneous.
AFFIRMED.

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