United States v. Addison

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS February 26, 2013

Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff–Appellee,
No. 11-8105
v.

AMANDA ADDISON, a/k/a Amanda
Ortiz,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 2:11-CR-00018-ABJ-3)

Kerry J. Jacobson, Assistant United States Attorney, District of Wyoming, Lander,
Wyoming, (Christopher A. Crofts, United States Attorney, District of Wyoming,
Cheyenne, Wyoming, with her on the brief) for Plaintiff-Appellee

Thomas A. Fleener, Fleener & Vang, LLC, Laramie, Wyoming, for Defendant-Appellant

Before O’BRIEN, MURPHY, and TYMKOVICH, Circuit Judges.

O’BRIEN, Circuit Judge.
 Amanda Addison1 and Melody St. Clair were on trial for embezzling or converting

funds from the Northern Arapahoe Tribe’s Department of Social Services (DSS). On

July 7, 2011, the third day of trial, the trial judge declared a mistrial as to St. Clair only

and excluded her from the courtroom for the remainder of the trial. Addison was

convicted. She brings two issues for our consideration, whether: (1) the exclusion of St.

Clair violated Addison’s Sixth Amendment right to a public trial and (2) the evidence

was sufficient to demonstrate criminal intent. Because the district court had a substantial

reason for excluding St. Clair, no Sixth Amendment violation occurred. The evidence

was sufficient to prove her knowing and intentional taking of DSS funds. We affirm.

I. FACTUAL BACKGROUND

We recite the facts in the light most favorable to the jury’s verdict. See

United States v. Pablo, 696 F.3d 1280, 1284 n.5 (10th Cir. 2012). The Northern

Arapahoe Tribe is a federally recognized Indian tribe located on the Wind River Indian

Reservation in Wyoming; Addison is a member. In 2005, she began working as a payroll

clerk for DSS, which provides welfare assistance to tribal members and their families.

Her job duties included inputting DSS employees’ time card information into the payroll

system and processing their payroll checks. At that time, George Moss was the

Executive Director of DSS. St. Clair was the Finance Administrator and Addison’s direct

supervisor.

1
Addison has remarried since the time of the offense and is now Amanda Ortiz.

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 Each year, the Tribe receives in excess of $10,000 for its operations. DSS is

completely funded by federal government money kept separate from the Tribe’s general

funds. Because of their federal nature, restrictions have been placed on the use of DSS

funds. Relevant here, the money could not be used for pay advances or employee loans.2

Nevertheless, shortly after beginning her employment with DSS, Addison, along with St.

Clair, began issuing checks to themselves from the DSS account for forbidden uses.

Their “advances” and “loans” far exceeded their salaries. Moss, who was the only DSS

employee with authority to do so, signed the checks. According to his testimony Addison

and/or St. Clair would bring checks for him to sign; he would ask if the checks were in

order and relied on their invariably affirmative answers. He also pre-signed checks to be

used when he was not in the office. He was aware of the restrictions placed on DSS

funds, but signed the checks, claiming to believe they were for agency use.3

2
Tribal funds could be used for those purposes, and, indeed, tribal policy
permitted its employees to receive advances and loans. Pay advances were only to be
given to cover medical, funeral or official travel expenses, were limited to one $300
advance per calendar quarter, and were to be repaid by the next bi-weekly pay period. If
an advance was not timely repaid, it was reclassified as an employee loan. Such loans
were capped at $1,000 and were to be repaid within one year with interest at 15%. The
limits and caps, however, were largely ignored and the Tribe’s efforts to collect were
poor. By the end of December 2006, the Tribe had advanced or loaned $890,000 to 480
of its employees, the bulk of which went to 46 employees. While the policy is not
unlawful (to the extent it involved the Tribe’s own funds), it was not economically
prudent because the Tribe had insufficient financial resources to cover the advances and
loans. In mid-2006, based on the recommendations of its auditors, the Tribe issued a
moratorium on all pay advances and employee loans.
3
Moss’s expansive interpretation of “agency use” included anything “tied in with
the agency in some way.” (R. Vol. 3, Pt. 3 at 674.) Thus, for example, he believed

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 Addison was interviewed by federal agents. She admitted issuing checks drawn

on DSS funds to herself, but claimed to be unaware of the money’s federal character and

of the tribal policy concerning pay advances and employee loans. See supra n.2. She

claimed such advances and loans were “very common” in DSS and “if an employee

wanted one, he or she would get one.” (R. Vol. 3, Pt. 4 at 819.) She originally claimed

to have taken the money because her then husband used her paycheck for drinking and

gambling and she needed to cover household expenses. However, later in the interview,

she admitted to having used the money to gamble. She also told the agents she did not

believe her actions were illegal at the time she was taking the money but admitted it “felt

. . . wrong,” she “felt sick about it,” and “she had . . . taken advantage of the situation”

because “it was easy.” (R. Vol. 3, Pt. 4 at 820, 822.) When asked whether, in retrospect,

her conduct looked like theft, she said yes.

Addison and St. Clair received over $140,000 in employee advances and loans;

Addison’s share was over $80,000. In order to avoid a loss of federal funding, the Tribe

repaid the DSS account for the amounts taken by Addison and St. Clair and transferred

their outstanding balances to the Tribe’s books. The short-term result of their actions was

a temporary suspension of DSS operations due to lack of funds. There was also a long-

term effect: DSS no longer receives federal funds in advance; it must seek

reimbursement from the federal government for expenditures.

allowing employees to obtain DSS funds to repair a vehicle constituted an “agency use”
because it allowed them to get to work.

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 II. PROCEDURAL BACKGROUND

Addison was indicted, along with Moss and St. Clair, for conspiracy to embezzle

or convert monies from an organization receiving federal funds in violation of 18 U.S.C.

§ 371 and embezzlement or conversion of monies from an organization receiving federal

funds in violation of 18 U.S.C. § 666(a)(1)(A). Moss pled guilty to the

embezzlement/conversion charge. Addison and St. Clair went to trial. On the third day

of their joint trial, during the government’s case-in-chief, counsel for St. Clair informed

the court he had a potential conflict of interest with one of the government’s witnesses,

Marliss Quiver. He had represented her in a 1994 criminal prosecution for misuse of

funds. Her expected testimony related to the amount of Addison and St. Clair’s advances

and loans. She would also testify about St. Clair’s intimidation of her. St. Clair had an

interest in impeaching her, particularly in regard to her probable witness intimidation

testimony. Since Quiver’s veracity would be critical, St. Clair’s counsel would be

required to expose her prior conviction. However, given Quiver’s status as a former

client, counsel felt he could not ethically cross-examine or impeach her. Given these

circumstances, the judge sua sponte declared a mistrial as to St. Clair only and allowed

the trial to proceed against Addison. 4

The judge explained the conflict to St. Clair and his decision to declare a mistrial.

In so doing, he refrained from making any findings as to the legitimacy of Quiver’s

4
The correctness of counsel’s position or the judge’s response is not at issue.

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witness intimidation claims. However, he told St. Clair any witness intimidation would

be considered an obstruction of justice, itself an indictable offense, and directed her not to

communicate directly or indirectly (i.e., through family or friends) with any witnesses.

After the mistrial was declared, St. Clair’s counsel asked if she would be allowed to

remain and watch the proceedings. The judge said no. He viewed her as any other

witness who has an interest in the case and considered it to be inappropriate to have her

present. Addison objected, claiming her Sixth Amendment right to a public trial would

be violated by St. Clair’s exclusion from the trial. The government maintained the

exclusion was proper because St. Clair could potentially be a witness in her own case

involving the same conduct. Thus, it claimed, allowing her to observe Addison’s trial

and thereby preview the evidence against her would impermissibly permit her to adjust

her testimony in her own trial. The judge denied Addison’s objection, saying St. Clair

was “an indictable co-defendant” and allowing her to sit as a member of the audience in

a trial where she was once a defendant, could distract the jury and be seen as a comment

on her guilt or innocence. (R. Vol. 3, Pt. 2 at 414, 415.)

After a brief recess, government counsel informed the judge (outside the presence

of the jury) of a problem concerning the witness testifying just prior to the declaration of

a mistrial, Rosella Morin. Apparently, she was afraid of losing her job with the Tribe

because she worked with some of Addison’s relatives, who were in the courtroom. The

judge’s further questioning revealed another basis for Morin’s fear: the wife of one of

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the tribal business councilmen is related to St. Clair.5 The judge made one thing clear—

he would tolerate no obstruction of justice. He used the situation as further support for

excluding St. Clair from the trial:

And that’s another reason why it would be intolerable to have Ms. St.
[Clair] here. . . . [F]or the Court to—especially in light of what this witness just
said—and it’s obvious that she’s very tremulous about this.

For me to allow a co-defendant to sit in this courtroom with family
members and go out in the hallway and glare at people coming in and out of this
courtroom—I wasn’t born yesterday. [Addison] has a right to a fair trial, but . . .
no one has a right to obstruct justice, and it’s clear that this witness is intimidated,
and I’m not putting up with it. And that further buttresses the Court’s earlier
ruling regarding the exclusion of [St. Clair] from the remainder of this proceeding.

....

[W]hen I exclude a person who may engage in acts of witness intimidation,
. . . that is not affecting [Addison’s] right to a fair trial. To the contrary, . . . it’s
probably guaranteeing that she gets it.

....

I have an obligation to make sure that people get due process in this
courtroom; that they get a fair trial; that there is no obstruction of justice, and my
antennae are up. The government has made representations as officers of the
Court, and this witness clearly heightened this Court’s concerns. So that’s the
reason for the Court’s ruling. No one else is excluded. The whole world is
invited.

(R. Vol. 3, Pt. 2 at 421-23.)

5
The Business Council is the governing body elected to conduct the Tribe’s
business. It has the power to hire and fire tribal employees.

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 Addison’s trial proceeded. The jury acquitted her of conspiracy but convicted on

the embezzlement/conversion charge. She was sentenced to 12 months and 1 day

incarceration.

III. DISCUSSION

A. Sixth Amendment Right to Public Trial

Does the Sixth Amendment right to a public trial prohibit the exclusion of a

particular member of the public? We review the district court’s factual findings for clear

error, but the ultimate issue—whether the exclusion of St. Clair violated Addison’s Sixth

Amendment right to a public trial—is legal, requiring de novo review. United States v.

Al-Smadi, 15 F.3d 153, 154 (10th Cir. 1994).

Our analysis must begin with the words of the Constitution: “In all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury . . . .” U.S. Const. amend. VI. “The requirement of a public trial is for the

benefit of the accused; that the public may see he is fairly dealt with and not unjustly

condemned, and that the presence of interested spectators may keep his triers keenly alive

to a sense of their responsibility and to the importance of their functions.” Waller v.

Georgia, 467 U.S. 39, 46 (1984) (quotation marks omitted). “[T]here is a strong societal

interest in public trials. Openness in court proceedings may improve the quality of

testimony, induce unknown witnesses to come forward with relevant testimony, cause all

trial participants to perform their duties more conscientiously, and generally give the

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public an opportunity to observe the judicial system.” Gannett Co. v. DePasquale, 443

U.S. 368, 383 (1979).

While an accused enjoys the right to a public trial, the right is not absolute.

Waller, 467 U.S. at 45; United States v. Galloway (Galloway I), 937 F.2d 542, 545 (10th

Cir. 1991). Where, as here, there is only a partial closure of the trial, the defendant’s

right gives way if there is a “substantial” reason for the partial closure. Galloway I, 937

F.2d at 546; see also Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir. 1989) (habeas corpus

case) (defining total closure of courtroom as only allowing defendant, jury, judge and

court staff to be present; closure was partial where only defendant’s relatives were

excluded from the courtroom during a witness’s testimony). The trial judge must make

findings sufficient for us to determine whether partial closure was proper. Galloway I,

937 F.2d at 546

No Sixth Amendment violation occurred here. While the court provided several

reasons for excluding St. Clair, we need only focus on one—witness intimidation—

because that interest alone is substantial. The government’s attorney, an officer of the

court, made a proffer saying Quiver—a government witness—had alleged St. Clair had

intimidated her. The judge also heard directly from another witness, Morin, who testified

to fear of losing her job in part because the wife of one of the Tribe’s business

councilmen is related to St. Clair. In the court’s own words, Moran appeared “very

tremulous” about testifying and was “clear[ly] . . . intimidated.” (R. Vol. 3, Pt. 2 at 421.)

Numerous courts, including our own, have upheld closure to protect testifying witnesses.

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See Nieto, 879 F.2d at 752-54 (exclusion of defendant’s relatives during victim’s

testimony did not violate the Sixth Amendment where victim was concerned for his

safety given his two other assailants had yet to be apprehended and the defendant’s

brothers knew where he lived); United States v. Galloway (Galloway II), 963 F.2d 1388,

1390 (10th Cir. 1992) (approving partial closure of courtroom during victim’s testimony

due to victim’s age and the sexual nature of the offense); see also Martin v. Bissonette,

118 F.3d 871, 875 (1st Cir. 1997) (closure of courtroom to all spectators, including

defendant’s mother, during key witness’s testimony did not violate Sixth Amendment

where witness had been intimidated by defendant, his girlfriend and his brothers); Woods

v. Kuhlmann, 977 F.2d 74, 76-77 (2d Cir. 1992) (exclusion of defendant’s family during

eyewitness’s testimony justified due to witness’s fear for her safety after being threatened

by defendant’s family); United States v. Hernandez, 608 F.2d 741, 747-48 (9th Cir. 1979)

(no Sixth Amendment violation where public excluded from courtroom during

examination of witness who was in fear of his personal safety after being threatened).

While the closure in these cases was limited to the duration of the witness’s testimony, it

was proper in this case for the court to exclude St. Clair from the entire trial because

more than one witness complained of intimidation. Indeed, protecting the participants in

a trial is an integral part of protecting the integrity of the trial itself. Cf. United States v.

Jackson, 513 F.2d 456, 459 (D.C. Cir. 1975) (stating one purpose of statute criminalizing

witness intimidation is “the protection of participants in federal judicial proceedings, and

thereby the protection of the public interest in the due administration of justice”);

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Broadbent v. United States, 149 F.2d 580, 581 (10th Cir. 1945) (recognizing statute

prohibiting witness intimidation was “designed to protect witnesses in Federal courts and

to prevent a miscarriage of justice by corrupt methods”).

St. Clair’s exclusion did not undermine the interests protected by the Sixth

Amendment right to a public trial. See Nieto, 879 F.2d at 753 (considering the interests

protected by the Sixth Amendment in determining whether a violation occurred).

Because the courtroom was open to everyone but St. Clair, Addison was not at risk of

being treated unfairly or unjustly condemned.6

6
In a total closure case, “the party seeking to close the hearing must advance an
overriding interest that is likely to be prejudiced, the closure must be no broader than
necessary to protect that interest, the trial court must consider reasonable alternatives to
closing the proceeding, and it must make findings adequate to support the closure.”
Waller, 467 U.S. at 48.
At oral argument, Addison relied heavily on Presley v. Georgia, where the trial
court excluded the lone observer, who was determined to be defendant’s uncle, from jury
voir dire because of insufficient seating space in the courtroom and the risk the jury
would overhear prejudicial remarks by the defendant’s family members. 558 U.S. 209,
130 S. Ct. 721, 722 (2010). The Supreme Court applied the Waller “overriding” interest
test. Id. at 724-25. The closure in Presley only resulted in the exclusion of one person,
but, the Court treated it as a total closure case; voir dire was closed to all members of the
public, the closure just happened to affect only one individual. The Presley decision
recognized the necessity of total closure in appropriate circumstances, but not on the
record presented: “Nothing in the record shows that the trial court could not have
accommodated the public at Presley’s trial.” Id. at 725.
Even were we to apply the stricter Waller (total closure) test to this case, it is
satisfied: (1) preventing witness intimidation, thereby preserving the integrity of the trial,
is an overriding interest which would be prejudiced if St. Clair were not excluded; (2) the
closure was no broader than necessary to protect that interest as the court only closed the
trial to the individual alleged to have engaged in witness intimidation and her exclusion
from the entire trial was proper because there was evidence she intimidated more than
one witness; (3) the court implicitly determined there were no reasonable alternatives to

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B. Sufficiency of the Evidence

Without objection the judge gave the following instruction with respect to the

intent element: “In order to find [Addison] guilty . . . you must find that the government

proved . . . beyond a reasonable doubt . . . that [she] did knowingly and intentionally

steal, embezzle, or otherwise without authority knowingly convert, or intentionally

misapply property” owned by or in the custody of DSS. (R. Vol. 1 at 223.) The jury was

told “knowingly” means the defendant “was conscious and aware of her action, realized

what she was doing or what was happening around her, and did not act because of

ignorance, mistake or accident.” (Id. at 231.) It was further instructed that as long as it

found Addison “possessed the requisite intent, the authorization by a supervisor does not

bar criminal prosecution.” (Id. at 233.)

Addison claims her conviction cannot stand because the government presented

insufficient evidence of her knowledge and intent. Elaborating, she argues the

government failed to show she knew: 1) she was taking government funds and 2) the

“advances” and “loans” were improper at the time of her actions. The first argument is

easily resolved: the government was not required to prove she knew the funds were

federally derived. Section 666(a)(1), (b) only requires the money taken be owned by or

exclusion as St. Clair’s presence would likely intimidate witnesses; and (4) its findings
adequately supported her exclusion.
Addison claims the denial of the right to a public trial guaranteed by the Sixth
Amendment constitutes structural error not subject to harmless error review. Because
there was no Sixth Amendment violation, and consequently no need for harmless error
review, the argument is misplaced.

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under the custody and control of an entity receiving in excess of $10,000 a year in federal

funding. The uncontroverted evidence established DSS as such an entity.7 Her second

argument requires some elaboration.

This case is about the reasonable inferences a jury might draw from the whole

body of evidence presented. Respect for the jury’s fact-finding and ultimate verdict

restricts our review.

We review sufficiency-of-the-evidence challenges de novo, considering both
direct and circumstantial evidence, and all reasonable inferences therefrom, in the
light most favorable to the government. We may not disturb the jury’s credibility
determinations, nor weigh the evidence in performing this analysis. The evidence
is sufficient under these tests if a reasonable jury could have found the defendant
guilty beyond a reasonable doubt.

United States v. Acosta-Gallardo, 656 F.3d 1109, 1123 (10th Cir.) (citations and

quotation marks omitted), cert. denied, 132 S. Ct. 540 (2011).

As we explain, the evidence at trial was sufficient to permit the inference,

apparently drawn by the jury, that Addison improperly, knowingly, and intentionally took

money belonging to or in the care of DSS. In summary: Addison wrote over seventy

checks to herself from DSS’s account; these checks were in addition to her payroll checks

and far exceeded her annual salary of $23,000; she used the money to gamble; and her

admissions speak volumes—it “felt . . . wrong,” she “felt sick about it,” and “she had . . .

7
Although unnecessary, there was evidence supporting a reasonable inference
that Addison knew the money she was taking was federally derived. According to Moss,
information concerning the federal regulations and the proper use of federal grant money
was disseminated to the DSS Finance Office. Several witnesses also testified to the
separate treatment of tribal funds and the federal money used to fund DSS.

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taken advantage of the situation” because it was “easy.” (Vol. 3, Pt. 4 at 820, 822.) Also

looking at her conduct in retrospect, she admitted it resembled theft. But part of the

government’s case was circumstantial and there was contrary evidence with respect to the

knowledge issue.

As is common in cases such as this, none of the government’s witnesses testified

to Addison’s specific knowledge at the time of the offense—knowledge that taking

advances and loans was improper. And Addison presented evidence of her

“misunderstanding.” She points to evidence demonstrating: (1) she received prior

approval to take the advances and loans, (2) she was paying them back through payroll

deductions, and (3) she never attempted to hide her actions. She also emphasizes the

routine nature of tribal employees taking advances and loans. Addison testified to having

the approval of either Moss or St. Clair for her “advances” and “loans.”

But other evidence belied her claim of innocent taking. First, during her interview

with federal agents, she said her requests to St. Clair for advances and loans were oral.

According to Addison’s trial testimony, however, St. Clair required requests to be in

writing and she complied. No written requests were found. When asked to explain the

discrepancy, Addison accused St. Clair of shredding the documentation. Second,

Addison received a week suspension in November 2006 from St. Clair for, inter alia,

preparing a pay advance without permission. So, she received at least one advance

without permission. Third, in reconciling the Tribe’s books, an auditor discovered four

missing checks which had cleared the DSS account but which had not been logged into

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DSS books. Copies of those checks were obtained from the bank; all four were issued to

Addison. When the auditing firm had asked Addison for information concerning the

missing checks, she claimed to have none. Finally, the evidence revealed checks issued

to Addison were out of order even though Addison claimed the computer program used

to process the payroll checks would not allow it. Given that Moss signed blank checks,

to which, according to a co-worker’s testimony, Addison had access, a jury could

reasonably infer Addison used pre-signed checks to obtain funds without prior approval,

thus resulting in checks being issued out of order.

Assuming Addison had permission to receive the “advances” and “loans,” that

permission would not absolve her from criminal liability. Moss was the only DSS

employee with authority to sign checks from the DSS account. Addison admitted Moss

was not a good manager and signed every check she asked him to sign upon her

affirmation that the checks were in order. Moss’s testimony confirmed this. In short, she

knew any “permission” she received from Moss was illusory.

Addison did not hide her actions in that the amounts of her advances and loans, as

well as her year-to-date totals, were contained on her pay stub. But there was no need to

hide her actions as there was no effective oversight. Moss was, at best, a poor manager.

And St. Clair was taking similar amounts of money.8

8
Addison relies on United States v. Oldbear, where Oldbear argued,
unsuccessfully, the evidence was insufficient to prove she had the requisite intent for
commission of the crime of embezzlement under 18 U.S.C. § 1163. 568 F.3d 814, 823

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 Addison claims she was repaying the amounts she took through payroll

deductions. But the evidence showed the interest alone exceeded the payments being

made; the “loans” would never be repaid. Moreover, as the payments (payroll

deductions) were being made, even more money was being taken improperly. According

to one of the Tribe’s auditors, it appeared the balances were being paid with new

advances and loans. A jury could reasonably infer that Addison was making nominal

payments only for the sake of appearances. Also, the last payment Addison made on the

balance was on August 5, 2008. It was a payroll deduction from her last payroll check

before she was laid off. While she was adamant in trial testimony that she was going to

pay off her balance, she had made no payment, not even a token one, in three years.

Advances and loans were commonplace on the reservation. However, if an

“everyone is doing it” defense ever works, it does not work here for at least two reasons.

First, most of the other advances and loans were funded with tribal money, not federal

money. Second, Addison and St. Clair’s balances far exceeded those given to other

employees.

(10th Cir. 2009). We concluded (1) the fact she used her son’s name to obtain funds
from the tribe to repair her vehicle and (2) gave her son the new car she purchased with
tribal funds to avoid the suspicion of her fellow tribe members, demonstrated the
requisite intent. Id. at 824. Addison argues this case is different because she, unlike
Oldbear, did not engage in deception in taking the advances and loans. Addison’s failure
to engage in deception is one fact bearing upon guilty knowledge, but not the only fact.
It may mitigate, but does not negate, the other substantial evidence of a knowing and
intentional taking of DSS funds, especially where deception was largely irrelevant given
Moss’s cavalier attitude and poor oversight and St. Clair’s participation in the same
illegal behavior. The evidence was sufficient to support the jury’s decision.

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 The jury had the opportunity to evaluate the “climate” on the reservation and was

instructed that good faith is a complete defense “because good faith on the part of the

defendant is, simply, inconsistent with . . . a finding of knowingly, willfully,

intentionally or deliberately embezzling, stealing, misapplying, or converting without

authority money or property.” (R. Vol. 1 at 234.) As the government argues and the

evidence supports, “[b]ased upon the jury’s subsequent verdict, [it] simply and

reasonably did not believe [Addison’s allegedly good faith] explanations.” (Appellee’s

Br. at 28.)

AFFIRMED.

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