United States v. Oldbear

FILED
United States Court of Appeals
Tenth Circuit

June 10, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 08-6095
LOUELLA OLDBEAR,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 5:07-CR-00077-F-1)

William D. Lunn, Law Office of William D. Lunn, Tulsa, Oklahoma, for
Appellant.

Arvo Q. Mikkanen, Assistant United States Attorney (John C. Richter, United
States Attorney, with him on the brief), Office of the United States Attorney,
Oklahoma City, Oklahoma, for Appellee.

Before MURPHY, ANDERSON, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Louella Oldbear, a member of the Cheyenne-Arapaho Indian Tribes, used

tribal funds to repair one of her personal vehicles and to purchase another. A

federal jury convicted her of five counts of embezzling Indian tribal funds in
violation of 18 U.S.C. § 1163 and one count of making a false statement to a

government agent in violation of 18 U.S.C. § 1001(a)(2).

On appeal, Oldbear contends (1) the district court violated her

constitutional rights when it excluded testimony from three defense witnesses

who also received tribal funds for personal purposes; (2) her convictions should

be overturned for lack of evidence; and (3) the district court improperly allowed

the prosecutor to cross-examine her regarding another instance of embezzlement,

thus causing her to prejudicially invoke her Fifth Amendment right against self-

incrimination.

We agree with the district court that the witness testimony was not relevant

to her defense and that the cross-examination did not unduly prejudice her. We

also conclude the evidence was sufficient to prove the charges against her.

Exercising jurisdiction under 28 U.S.C. § 1291, we therefore AFFIRM her

convictions.

I. Background

A. The Emergency Assistance Program

Oldbear was an administrative assistant in an office of the Cheyenne-

Arapaho Tribes that disbursed funds to tribal members pursuant to an Emergency

Assistance Program. The head of the office was Roy Dean Bullcoming, the

business committee member for the C-1 District of the Cheyenne-Arapaho Tribes.

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 According to official program guidelines, only members of the Cheyenne-

Arapaho Tribes could receive emergency assistance funds, and funds could be

disbursed only “as a last resort or for emergency services not otherwise

available.” ROA Vol. 3 at 106. Tribal members could apply for emergency

assistance only “once every quarter, every three months,” and the maximum they

could receive at any one time was $200. Id. Furthermore, funds were available

only for certain categories of expenses, including groceries, temporary shelter,

utilities, and medical needs. With respect to transportation, only “bus fare or

other low-cost transportation for emergency situations” qualified. Id. Vehicle

repairs were ineligible.

Oldbear had significant authority over the Emergency Assistance Program

in the C-1 District, and administered it when Bullcoming was unavailable. When

disputes arose between C-1 District employees and tribal members regarding

eligibility for emergency assistance, Oldbear frequently resolved them. She

processed tribal members’ emergency assistance applications and printed checks

from her office and home computers to fulfill emergency assistance requests. She

also had access to a rubber stamp of Bullcoming’s signature, allowing her to sign

checks for tribal funds.

Unfortunately, the Emergency Assistance Program was rife with abuse.

Some tribe employees in charge of administering the program did not follow the

official guidelines. For example, in the C-1 District Office, many emergency

3
assistance requests went undocumented, and Bullcoming approved them without

following formal procedures. This led to arbitrary disbursement of emergency

assistance funds and consequent anger among tribal members.

During this time, Oldbear used emergency assistance funds to pay for

repairs to her personal vehicle. First she spent $3,145 to replace an engine in her

1993 GMC Safari van. Then she spent $366 for additional repairs to the van.

Because she knew the two expenditures were “quite a bit of an amount approved,”

she requested the $366 in her son’s name rather than her own. ROA Vol. 4 at

371.

Around the same time, Oldbear again used emergency assistance funds to

pay for her personal transportation, this time purchasing a 2002 Buick LeSabre.

Oldbear planned to pay for the car in two installments of around $6,000, but

claimed the LeSabre was expensive and her office “couldn’t afford to do that with

the allocation [of emergency assistance funds] that we had.” Id. at 369. For this

reason, Oldbear asserted, she paid for the car in four installments of around

$3,000. But in structuring her payments this way, Oldbear apparently avoided a

provision of the tribal guidelines requiring the Cheyenne-Arapaho business

committee to explicitly approve purchases in excess of $5,000.

B. The Federal Investigation

After receiving numerous complaints about mismanagement of the

Emergency Assistance Program, tribal officials referred the matter to federal

4
investigators. As part of the investigation, FBI agents interviewed Oldbear on

several occasions. During these interviews, she gave conflicting statements.

In a 2004 interview Oldbear told a federal agent that “[tribal] funds were

not to be used to purchase cars,” though she “cite[d] situations wherein those

funds were used to purchase cars by others, the tribe in particular.” ROA Vol. 4

at 275–76. Two years later, on September 6, 2006, Oldbear stated during a

second interview that “she was not aware of any vehicles purchased by Mr. Roy

Dean Bullcoming or the C-1 district for anyone.” Id. at 294.

In a third interview, however, federal agents once again questioned Oldbear

about automobile expenditures. This time, the agents brought checks from the

C-1 District, payable to the car dealership from which Oldbear purchased her

LeSabre.

When presented with the checks, Oldbear stated that “she did use some of

these checks to purchase a 2002 Buick LeSabre.” Id. at 297–98. An agent asked

why she had not shared that information during her previous interviews, and

Oldbear explained that “she was worried about her husband finding out about how

the vehicle was purchased.” Id. at 299. Oldbear then asked the agents, “are you

going to take me to jail now”? Id.

Oldbear was subsequently indicted for embezzlement and making false

statements to federal agents.

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 C. Oldbear’s Proffer at Trial

At trial, Oldbear’s defense was based on her state of mind at the time of her

charged conduct. She sought to show that because Bullcoming approved her

expenditures, she believed she was entitled to the funds and thus did not form the

requisite intent for embezzlement. To bolster her theory, she planned to call three

witnesses who would have testified that they also received emergency assistance

funds for personal vehicle repairs.

The government objected, claiming the witnesses’ testimony was not

relevant because it would shed no light on what the emergency assistance

guidelines allowed or prohibited. The witnesses, according to the government,

were not tribal employees or administrators of the program, but were mere

recipients of emergency assistance funds; their emergency assistance applications

were approved only “because of poor bookkeeping, because of somebody who

processed [their applications] for incorrect reasons or deliberately.” ROA Vol. 4

at 340. This, the government claimed, meant their testimony “really doesn’t have

anything to do with the facts of the case and what the law says is permissible.”

Id. Oldbear responded that she believed the testimony was evidence of a habit of

the tribe to approve expenditures for personal transportation, and the testimony

was therefore admissible under Federal Rule of Evidence 406.

To aid its decision on the government’s objection, the court allowed

Oldbear to conduct a voir dire examination of one of her witnesses outside the

6
presence of the jury. The witness testified she was a member of the Cheyenne-

Arapaho Tribes and lived in the C-1 District. She stated that in 2002, she applied

for $604 of emergency assistance funds to pay for car repairs, and Bullcoming

approved her application. On cross-examination, the witness admitted she had no

knowledge of the official guidelines for the Emergency Assistance Program,

having simply “filled out [a] form and presented it.” Id. at 349.

After this proffer, the court ruled to exclude the evidence on relevance

grounds. The court characterized the testimony as attempting to establish an

“everybody-is-doing-it defense.” Id. at 352. The court stated that “evidence of a

mere deviation from the emergency assistance program guidelines is not probative

of any matter that is put in issue . . . . And that’s all we have from [the witness]

is evidence of a mere deviation.” Id.

The court then confirmed with Oldbear’s counsel that her other witnesses

would testify “to the same effect,” id. at 353, and extended its ruling to the

remaining defense witnesses.

D. Oldbear’s Testimony

As a result of the district court’s ruling, the only witness called on behalf

of the defense was Oldbear herself. She testified that Bullcoming “was the

ultimate decision-maker on whether someone would receive” emergency

assistance, and he had approved her expenditures. ROA Vol. 4 at 362. She also

stated her job required her to drive frequently and she needed transportation to

7
fulfill her work duties. She claimed there “was a lot of wear and tear on my

vehicle and my husband was always upset that . . . the car was always breaking

down.” Id. at 367. This, she claimed, was the reason she needed tribal funds to

repair her GMC and purchase the Buick.

Oldbear also claimed the purchase of the Buick was not her idea. She

asserted that another tribal employee had originally suggested she needed

“reliable transportation,” and the employee had talked to Bullcoming about

purchasing Oldbear a car. Id. at 368. Oldbear stated that “at the time, I did not

know that it was wrong” to purchase a personal vehicle using tribal funds. Id. at

369.

On cross-examination, however, Oldbear admitted “[t]here was no

emergency” justifying her purchase of the Buick and repair of the GMC using

tribal funds. Id. at 382. She also admitted she could have used tribe-owned

vehicles, specifically a tribe van, to fulfill at least some of her work duties.

Furthermore, shortly after purchasing the Buick, Oldbear ceased driving it and

gave the car to her son. She explained she had done so because she was worried

other tribal members would “not like that [I had] a new car.” Id. at 372. Finally,

she conceded she had helped Bullcoming obtain his own car with tribal funds: a

2001 Pontiac Grand Am. Nonetheless, she maintained she had done nothing

wrong and claimed the federal investigation leading to her indictment was merely

a product of “tribal politics.” ROA Vol. 4 at 389.

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 II. Discussion

Oldbear makes three claims on appeal: (1) the district court violated her

constitutional rights and the Federal Rules of Evidence when it excluded

testimony from three witnesses; (2) the evidence was insufficient to prove

Oldbear committed embezzlement or made a material misrepresentation to a

federal agent; and (3) Oldbear suffered prejudice when the trial court allowed the

prosecution to inquire into a prior act of embezzlement, causing her to invoke her

Fifth Amendment right against self-incrimination.

We address each claim in turn.

A. The Excluded Defense Witnesses

Oldbear’s first claim centers on the three defense witnesses the district

court excluded from trial. She argues the district court “gutted her defense” and

thereby denied her due process when it excluded the witnesses’ testimony. Aplt.

Br. at 23. In addition, she argues the testimony would have established it was the

tribe’s habit to pay for car repairs, and the testimony was therefore relevant under

Federal Rule of Evidence 406 to prove she believed she was entitled to the funds

and could not have committed embezzlement. Neither argument has merit.

(1) Due Process

Before discussing the substance of Oldbear’s due process argument, we

must address the applicable standard of review. At trial, Oldbear did not raise

any constitutional objections to the exclusion of her witnesses; she instead relied

9
entirely on the Federal Rules of Evidence. Thus, we may review her due process

claim for plain error only. See United States v. Traxler, 477 F.3d 1243, 1248

(10th Cir. 2007) (citing United States v. Battle, 289 F.3d 661, 664–65 (10th Cir.

2002)). And because Oldbear’s briefs on appeal fail to address the plain error

standard, she has waived her constitutional argument. United States v. LaHue,

261 F.3d 993, 1009 (10th Cir. 2001); see also United States v. Solomon, 399 F.3d

1231, 1238 (10th Cir. 2005). Nonetheless, even ignoring her waiver, the claim

fails on the merits under plain error review. The court did not commit legal error.

Although “[t]he right to present a defense is a fundamental element of due

process of law . . . . the right to present defense witnesses is not absolute. A

defendant must abide the rules of evidence and procedure.” United States v.

Bautista, 145 F.3d 1140, 1151–52 (10th Cir. 1998) (internal quotation marks and

citations omitted). Thus, an evidentiary ruling infringes a defendant’s due

process rights only if the district court violates the Federal Rules of Evidence. Id.

at 1152. And a district court violates the Rules of Evidence only if it abuses its

broad discretion—i.e., only if its ruling is based “on a clearly erroneous finding

of fact or an erroneous conclusion of law,” or the ruling “manifests a clear error

in judgment.” United States v. Dowlin, 408 F.3d 647, 659 (10th Cir. 2005)

(quoting United States v. Jenkins, 313 F.3d 549, 559 (10th Cir. 2002)).

Additionally, to establish a due process violation, Oldbear must show she was

denied fundamental fairness, i.e., that the excluded evidence might have affected

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the outcome of her trial. See id. (quoting Richmond v. Embry, 122 F.3d 866, 872

(10th Cir. 1997)). For several reasons, the district court neither abused its

discretion under the Rules of Evidence nor denied Oldbear fundamental fairness

when it excluded the testimony of her proffered witnesses.

First, the district court properly concluded the testimony was irrelevant.

Though the standard for relevance under Federal Rule of Evidence 401 is quite

generous, see United States v. Jordan, 485 F.3d 1214, 1218 (10th Cir. 2007),

proffered evidence must, at minimum, advance the inquiry of some consequential

fact to be considered relevant and admissible. See 7 Kenneth S. Broun,

McCormick on Evidence § 185 (6th ed. 2006). The consequential facts at issue

during Oldbear’s trial were whether the tribe authorized her expenditures and

whether she possessed the requisite intent to commit embezzlement. Oldbear has

failed to show how her proffered witnesses’ testimony affected the degree of

probability of these facts, see Fed. R. Evid. 401, or advanced the inquiry with

respect to them.

The proffered witnesses were not employees of the tribe and were

uninformed about the emergency assistance application process. Indeed, during

Oldbear’s proffer, her witness admitted having no knowledge of whether the tribe

had even enacted any guidelines controlling the disbursement of emergency

assistance funds. As the district court noted, the witnesses’ testimony would

merely have established that the Emergency Assistance Program was being

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managed in a “sloppy” or corrupt manner. ROA Vol. 4 at 312. Such evidence

could not prove whether the tribe approved Oldbear’s expenditures, nor could it

shed any light on her state of mind. See United States v. Hernandez, 693 F.2d

996, 1000 (10th Cir. 1982) (concluding the district court did not err in excluding

certain testimony on relevance grounds because the witnesses admitted they had

“no knowledge of [the defendant’s] intent”). The district court therefore acted

within its discretion in excluding the testimony on relevance grounds.

Second, putting aside questions of relevance, the testimony was properly

excluded under Federal Rule of Evidence 403. 1 Rule 403 grants a district court

discretion to exclude even relevant evidence if its probative value is outweighed

by such considerations as unfair prejudice, confusion of the issues, or misleading

the jury. Macsenti v. Becker, 237 F.3d 1223, 1240 (10th Cir. 2001).

Here, the district court aptly characterized Oldbear’s proffer as an attempt

to establish an “everybody-is-doing-it defense.” ROA Vol. 4 at 352. Essentially,

the witnesses would have testified that they, like Oldbear, were allowed to use

tribal funds to pay for personal transportation expenses. But only Oldbear’s

actions and state of mind were material to her guilt. And the fact that others may

have been the beneficiaries of improper conduct does nothing to excuse Oldbear.

1
Though the district court did not rely on Rule 403 to exclude the
testimony, we may affirm a district court’s evidentiary rulings for any reason
supported by the record. United States v. Ledford, 443 F.3d 702, 707 (10th Cir.
2005).

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The witnesses’ testimony was a sideshow from which the jury could have gleaned

little valuable information other than additional instances of sloppy or corrupt

management of the Emergency Assistance Program. See Jordan, 485 F.3d at

1219 (noting that a defendant’s “speculative blaming” of another alleged

perpetrator “intensifies the grave risk of jury confusion” (quoting United States v.

McVeigh, 153 F.3d 1166, 1191 (10th Cir. 1998))).

Such testimony only would have served “to sidetrack the jury into

consideration of factual disputes only tangentially related to the facts at issue.”

Id. at 1221 (quoting McVeigh, 153 F.3d at 1191). Moreover, ample evidence in

the record showed that tribal officials frequently deviated from the emergency

assistance guidelines, making the witnesses’ testimony, at best, cumulative. See

Fed. R. Evid. 403 (relevant evidence may be excluded due to “considerations of

. . . needless presentation of cumulative evidence”). The testimony was therefore

properly excluded under Rule 403 as well.

Third and finally, even if the district court somehow erred in excluding the

testimony, any error was not a due process violation because it did not affect the

fundamental fairness of Oldbear’s trial: the excluded testimony, if admitted,

would not have “create[d] reasonable doubt that did not exist without the

evidence.” Richmond, 122 F.3d at 872. As explained below, substantial evidence

was presented at trial that Oldbear knew the program guidelines and yet violated

them in spending tribal funds on car repairs and a new car. Indeed, she sought to

13
hide her conduct from the tribe by giving the Buick to her son instead of driving

it herself. Three additional witnesses testifying to the sloppy administration of

the Emergency Assistance Program would not have created a reasonable doubt

regarding the outcome of the trial, and the exclusion of the witnesses’ testimony

did not violate Oldbear’s due process rights. See Dowlin, 408 F.3d at 661 (“In

light of the substantial evidence of guilt in the record, we find the district court’s

exclusion of [certain evidence] did not violate [the defendant’s] right to present a

defense.”).

In sum, the district court did not violate Oldbear’s constitutional rights—

or, indeed, the Federal Rules of Evidence—when it excluded the testimony of

these witnesses. The district court did not commit plain error and Oldbear’s due

process argument fails.

(2) Habit

Oldbear’s second argument regarding her proffered witnesses—that their

testimony would have established it was the habit of the tribe to pay for personal

transportation—is equally unavailing.

Under Federal Rule of Evidence 406, “[e]vidence of the habit of a person

or of the routine practice of an organization . . . is relevant to prove that the

conduct of the person or organization on a particular occasion was in conformity

with the habit or routine practice.” We have previously characterized a habit as a

semi-automatic act, United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir.

14
1987), and have held that “the very nature of habit evidence is that it is done

reflexively.” Sims v. Great Am. Life Ins. Co., 469 F.3d 879, 887 (10th Cir. 2006).

Furthermore, to prove an act was habitual, we require the proponent to offer

evidence of numerous, consistent occurrences of the act. See Camfield v. City of

Oklahoma City, 248 F.3d 1214, 1232–33 (10th Cir. 2001) (five acts would not

suffice).

Applying these principles, the conduct here cannot properly be viewed as

habitual. Oldbear’s witnesses had no personal knowledge as to whether it was a

routine practice of the tribe—rather than an improper deviation from tribal

policy—to approve emergency assistance applications for personal transportation

expenses. See 7 McCormick on Evidence § 195 (a “routine practice” must be

“reasonably regular and uniform”). In any event, Oldbear would have offered

only three instances of the supposed habit, which is certainly not sufficient to

demonstrate a habitual pattern. See Camfield, 248 F.3d at 1232–33. And it

should go without saying that illegal acts such as embezzlement cannot properly

be characterized as semi-automatic or reflexive. See Troutman, 814 F.2d at 1455

(holding that serial extortion, or refraining from extortion, does not constitute a

habit under Rule 406).

The district court did not abuse its discretion in concluding the witness

testimony failed to satisfy the standards of Rule 406.

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 B. Sufficiency of the Evidence

Oldbear next makes three contentions regarding the sufficiency of the

government’s evidence: (1) the government failed to prove she had lawful

possession of the tribal funds, a necessary element of embezzlement; (2) she did

not have the specific intent necessary to commit embezzlement; and (3) the

government failed to prove she made any material misstatements to federal

investigators.

We review sufficiency of the evidence claims de novo, but examine the

evidence in the light most favorable to the government and ask only whether any

rational juror could have found Oldbear guilty beyond a reasonable doubt. See

United States v. Parker, 553 F.3d 1309, 1316 (10th Cir. 2009). In doing so, “we

do not weigh conflicting evidence or consider witness credibility.” Id. (internal

quotation marks omitted).

(1) Embezzlement and Lawful Possession

Oldbear claims the government should have been required to “call[

someone] . . . to provide . . . business record[s] or testimony to indicate that Roy

Dean Bullcoming had not signed the . . . checks” for Oldbear. Aplt. Br. at 32

(emphasis added). Because the government failed to do so, Oldbear claims it

could not prove she, rather than Bullcoming, had lawful possession of the tribal

funds she used to pay for repairs to her GMC and to purchase the Buick.

16
 This argument is meritless. The government introduced testimony from

numerous witnesses, including Oldbear herself, proving she could issue checks

for emergency assistance funds. This evidence leaves no doubt she had lawful

possession of tribal funds. See United States v. Weller, 238 F.3d 1215, 1219

(10th Cir. 2001) (those in management positions, who have “special access” to

funds, have the “lawful possession” necessary for an embezzlement charge

(quoting United States v. Whitlock, 663 F.2d 1094, 1107 (D.C. Cir. 1980))).

Second, even if Bullcoming had indeed signed Oldbear’s checks and

thereby approved Oldbear’s use of tribal funds, nothing prevented the jury from

finding that Oldbear knew she lacked authorization from the tribes to use funds

for her personal transportation expenses. The evidence also allowed the jury to

find that Bullcoming was himself part of the embezzlement scheme. Cf. United

States v. Holmes, 611 F.2d 329, 331 (10th Cir. 1979) (“Although no conspiracy

was charged in the instant case, the evidence showed that defendant and [another

perpetrator] conspired to defraud the bank and to use the proceeds so obtained.”).

The evidence showed Oldbear knew the guidelines, was familiar with the

emergency assistance process, was the only employee who could print checks for

emergency assistance funds, and used funds to pay for personal expenses in

violation of the guidelines. This was clearly sufficient for a rational juror to find

Oldbear had lawful possession of tribal funds for purposes of her embezzlement

charge.

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 (2) Intent to Commit Embezzlement

Oldbear also asserts the evidence was insufficient to prove she had the

requisite specific intent to commit embezzlement. She argues that because

Cheyenne-Arapaho business committee members such as Bullcoming “held the

purse strings,” and had discretion to allocate funds, “there was no reason for

[Oldbear] to believe she would not be entitled” to funds for car repairs and a new

car. Aplt. Br. at 36.

The jury instructions in this case defined embezzlement as follows:

“‘[e]mbezzlement’ means the wrongful, intentional taking of money or funds of

another after the money or funds have lawfully come within the possession or

control of the person taking it.” ROA Vol. 1 at 140. The instructions further

stated that good faith was a complete defense, because “good faith on the part of

the defendant is simply inconsistent with a finding that defendant acted

knowingly and willfully as stated in the elements of the crimes charged. . . . An

honest mistake in judgment or an error in management does not rise to the level

of knowledge and willfulness required by statute.” Id. at 144. If the evidence

was sufficient to satisfy the various mens rea elements contained in these

instructions, it was necessarily sufficient to satisfy the specific intent required for

embezzlement under 18 U.S.C. § 1163. See United States v. Falcon, 477 F.3d

573, 578 (8th Cir. 2007) (concluding in a case brought under § 1163 that similar

instructions required a finding of specific intent).

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 A review of the record demonstrates the evidence presented at trial was

sufficient to prove Oldbear’s intent to commit embezzlement. Perhaps most

damning is Oldbear’s admission that she gave the LeSabre to her son to avoid the

suspicion of her fellow tribe members. Oldbear testified she knew “[t]he district

will not like that [I had] a new car and they are going to [ask] question[s].” ROA

Vol. 4 at 372. Oldbear also admitted that because she gave the LeSabre to her

son, her earlier statement that she needed the LeSabre for work was false:

[Prosecutor]. But then your son said you didn’t even drive
it to work. . . . [Y]ou didn’t even use the car. After you
justified that you needed it, you didn’t even drive it to
work, did you?

[Oldbear]. No, I didn’t.

Id. at 381. Furthermore, Oldbear admitted she used her son’s name, rather than

her own, to obtain funds to repair her GMC. To say the least, this casts suspicion

on Oldbear’s claim that she believed she was entitled to tribal money for personal

car repairs. And contrary to Oldbear’s arguments, we lack authority to review the

jury’s decision to discredit Oldbear’s innocent explanations for her state of mind.

Parker, 553 F.3d at 1316 (noting that we may not overturn a jury’s credibility

findings on appeal).

More than enough evidence was submitted for a rational juror to find that

Oldbear wrongfully and intentionally took money from the tribe. Her sufficiency

of the evidence claim regarding specific intent therefore fails.

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 (3) Material Misrepresentation to a Federal Agent

Oldbear’s final sufficiency of the evidence claim concerns her conviction

for making a false material statement to government agents. She makes two

arguments in support of this claim: (1) the FBI agents’ trial testimony was

flawed, and (2) the evidence failed to show any misstatements she made were

“material.”

Oldbear’s first argument essentially asks us to play the role of fact-finder.

She asserts the FBI agents’ testimony at trial was internally inconsistent and

lacked credibility. During the prosecution’s case-in-chief, an FBI agent testified

Oldbear stated in a 2004 interview that tribal funds “were used to purchase cars

by others, the tribe in particular.” ROA Vol. 4 at 275–76. Another FBI agent

testified that in 2006, Oldbear stated she was unaware of cars being purchased by

Bullcoming or the C-1 District (though she changed her story when presented

with tribal checks made out to her car dealer). Oldbear asserts that the

contradictions in the two agents’ testimony “raise[] serious doubts about whether

[the second agent] remembered his question properly or whether [Oldbear] had

understood it properly.” Aplt. Br. at 42. Oldbear also claims the FBI agents’

testimony was not credible because the agents did not write or record her

responses to their interview questions.

As stated above, we are not in the position to revisit the jurors’ credibility

assessments, nor are we allowed to re-weigh conflicting evidence. See Parker,

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553 F.3d at 1316. This is exactly what Oldbear would have us do, and her

sufficiency of the evidence claim therefore fails.

The record, moreover, contains sufficient evidence for a rational juror to

find Oldbear made a false statement to a federal agent. The federal agents

provided the jury with a specific sequence of events: Oldbear initially claimed

she had no information regarding cars purchased by Bullcoming and the C-1

District, although she might have been aware that tribal officials had purchased

cars for the tribe in the past. Later, when presented with irrefutable evidence in

the form of checks from the C-1 District to her car dealer, she changed her story

entirely and admitted Bullcoming had approved her use of tribal funds to pay for

a personal vehicle. Indeed, Oldbear herself admitted during cross-examination

that she had failed to tell the whole truth during her first interview with the FBI

agent:

[Prosecutor]. Now, these four checks are the same ones
that you admitted to . . . and then you picked those out on
your kitchen table as the ones that went to pay for this
LeSabre, right?

[Oldbear]. Yes.

Q. And you told him you didn’t tell him the truth the first
time around on the 6th when you saw him because you
were embarrassed because your husband didn’t know
exactly what happened here, correct?

A. Yes.

21
ROA Vol. 4 at 405. Oldbear’s own admissions therefore bolster the FBI agents’

testimony and refute her argument that she made no misstatements to federal

officials.

Oldbear’s second argument is that the evidence was insufficient to prove

her misstatement to the FBI agents was “material” under 18 U.S.C. § 1001(a)(2).

This argument is belied by the record and therefore fails. An FBI agent testified

at trial that the issue of whether emergency assistance funds were used to buy

personal vehicles for tribe members “was one of the issues that we were

originally briefed on as a concern on how funds were being used in this

investigation.” ROA Vol. 4 at 275. This testimony alone would allow a rational

juror to find that Oldbear’s false statement was material.

Because there was ample evidence in the record for a rational juror to find

Oldbear made a material misstatement to the FBI, Oldbear’s sufficiency of the

evidence claim regarding her conviction for making a material misstatement fails.

C. Cumulative Error and Oldbear’s Invocation of the Fifth
Amendment

Finally, Oldbear asserts the district judge improperly allowed the

prosecution to ask her about a prior instance of embezzlement for which she had

not been criminally charged. This line of questioning forced her to invoke her

Fifth Amendment right against self-incrimination, and she argues her invocation

of constitutional rights prejudiced the jury against her. She claims this

22
constitutional violation, in addition to the court’s exclusion of her defense

witnesses, amounted to cumulative error warranting reversal.

As an initial matter, we have already concluded the district court committed

no error in excluding Oldbear’s defense witnesses. Cumulative error cannot be

predicated on non-errors. See Smith v. United States, 555 F.3d 1158, 1171 (10th

Cir. 2009) (quoting Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119, 1125 (10th Cir.

1995)). We therefore proceed to analyze whether the district court committed

reversible error in allowing the prosecution to inquire into Oldbear’s prior act of

embezzlement. We review this issue de novo. United States v. Rivas-Macias,

537 F.3d 1271, 1278 (10th Cir. 2008), cert. denied, 129 S. Ct. 1371 (2009).

Before trial, in a Federal Rule of Evidence 404(b) notice, the government

informed Oldbear’s counsel and the court that it intended to question Oldbear

regarding a prior act of embezzlement she committed while working at a local

Indian social group. In response to this notice, Oldbear’s counsel argued the

evidence lacked foundation and failed to satisfy Rule 404(b), but never suggested

Oldbear intended to invoke her Fifth Amendment rights.

At trial, the government attempted to question Oldbear regarding the prior

embezzlement. Defense counsel immediately objected, and the court held a

sidebar conference outside the hearing of the jury. At the bench conference,

defense counsel again failed to raise any Fifth Amendment objections. The

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parties argued the admissibility of the evidence under the Federal Rules, and the

court decided to admit it with a limiting instruction.

After the bench conference, the government resumed its questioning.

Immediately, however, Oldbear interjected and asked, “Judge, do I have the right

to the Fifth to not answer anything . . . since [the embezzlement] does not involve

the Cheyenne-Arapaho tribe?” ROA Vol. 4 at 396. The court then took a recess

to determine whether Oldbear’s invocation of the Fifth Amendment was proper.

During the recess, the court held a brief hearing, and ruled to exclude the

questions on Fifth Amendment grounds. The court then recalled the jury and

gave a lengthy curative instruction, ordering the jury to “dismiss from your minds

any consideration or consideration in any way of the last two questions.” Id. at

399–400. Counsel neither moved for a mistrial nor objected to the contents of the

curative instruction.

Oldbear now contends this sequence of events caused her prejudice. She

asserts that the court “essentially emasculated [her] efforts to defend herself” and

that the curative instruction was ineffective. Aplt. Br. at 46. We disagree.

Any constitutional violation, and we doubt one occurred, was invited by

Oldbear. The district court handled the proffered evidence with care, properly

limiting its scope and use. It was Oldbear herself who raised the constitutional

argument. Our invited error doctrine prevents a defendant or counsel from lying

in wait for potential mistakes, and then seeking to reverse the outcome of trial.

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See United States v. Deberry, 430 F.3d 1294, 1301–02 (10th Cir. 2005) (“The

invited-error doctrine ‘prevents a party who induces an erroneous ruling from

being able to have it set aside on appeal.’” (quoting United States v. Burson, 952

F.2d 1196, 1203 (10th Cir. 1991))).

Even on the merits, the question and answer produced at worst negligible

prejudice. Oldbear was not forced to answer any questions after she invoked her

Fifth Amendment rights, and the prosecution never commented on her decision to

invoke those rights. While “curative instructions do not always cure,” this was an

isolated incident and the district court’s instruction was adequate to prevent, or at

least greatly mitigate, any prejudice. See United States v. Harrold, 796 F.2d

1275, 1281 (10th Cir. 1986). Given the circumstances—particularly defense

counsel’s failure to give prior notice of the Fifth Amendment issue—the court

acted reasonably in treating Oldbear’s objection with the seriousness it deserved

and taking prompt measures to mitigate any potential jury prejudice.

III. Conclusion

For the foregoing reasons, we AFFIRM Oldbear’s conviction.

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