from the United States District Court for the Eastern
District of Oklahoma (D.C. No. 6:14-CR-00020-JHP-1)
Lance Hopkins, Underwood Law Firm, Tahlequah, Oklahoma, for
Christopher Wilson, Assistant United States Attorney (Mark F.
Green, United States Attorney, Linda A. Epperley and Douglas
A. Horn, Assistant United States Attorneys, appearing with
him on the brief), Muskogee, Oklahoma, for Plaintiff -
BRISCOE, LUCERO, and McHUGH, Circuit Judges.
MCHUGH, CIRCUIT JUDGE.
Brett Merida, the former executive director of construction
for the Choctaw Nation of Oklahoma (the Nation), was
convicted after a fifteen-day jury trial on six counts of a
seven-count indictment. The indictment alleged Mr. Merida
conspired to receive cash and other remuneration from
subcontractors performing work on construction projects for
the Nation, embezzled in excess of $500, 000 by submitting
and approving false subcontractor invoices, and willfully
failed to report income on his federal tax returns for 2009
and 2010. Mr. Merida testified in his own defense at trial
and, on cross-examination, prosecutors impeached his
testimony using the transcript of an interview the
Nation's attorneys had conducted with him as part of a
separate civil lawsuit, before the initiation of these
criminal proceedings. Mr. Merida objected to the use of the
transcript and moved for mistrial, arguing the transcript was
protected by the attorney-client privilege and its use
prejudicially damaged his credibility with the jury. The
district court denied his motion for a mistrial and the jury
convicted Mr. Merida on all but one count. Mr. Merida timely
appealed the trial judge's denial of his motion for
mistrial. Exercising jurisdiction pursuant to 28 U.S.C.
§ 1291, we affirm.
Nation's executive director of construction, Mr. Merida
oversaw a period of significant growth in construction
projects. Flintco Construction (Flintco) was the general
contractor and program manager for all of the Nation's
construction and remodeling projects, and Robert DeWayne
Gifford was a project manager at Flintco. Even though
Builders Steel, a Tulsa, Oklahoma business owned and operated
by Lauri Parsons, was on the Nation's list of preferred
vendors, a Flintco project manager initially recommended a
different steel subcontractor based on a lower cost estimate
for the Nation's major expansion in casino construction.
But Mr. Merida and Mr. Gifford overruled this initial
recommendation, and Builders Steel became the steel
subcontractor for all the Nation's building projects.
Mrs. Parsons's husband, Brent Parsons, was the sales
manager for Builders Steel.
Schemes and Fraud
2009 and 2010, Mr. Merida was involved in three separate
fraudulent schemes at the expense of the Nation. These
schemes are detailed in the conspiracy counts of the
Indictment and were referred to at trial as the Missouri
Hunting/Worth Group Scheme, the Steel Fraud, and the Scott
Rice Fraud. We adopt those descriptive references for
purposes of our discussion.
The Missouri Hunting/Worth Group Scheme
November 2009, Mr. Merida went on a hunting trip to Missouri
with Brian Fagerstrom, president of Worth Group Architects,
and Builders Steel's Brent Parsons. Mr. Merida arranged
for Worth Group to submit a false invoice for $200, 000 to
the Nation to cover the cost of the trip, including $160, 000
for exotic animals they killed and related taxidermy work.
Mr. Merida approved an increase in Worth Group's fee for
upcoming work to cover this cost, which the Nation then paid.
The Steel Fraud
December 2009, the Nation's Business Committee approved a
proposal from Mr. Merida to prepurchase $10.5 million in
steel allegedly left over from an abandoned Las Vegas casino
project. Mr. Merida represented that the steel could be
prepurchased at a 20% discount for use in future Nation
construction projects based on Builders Steel's
projection of an increase in steel costs in 2010. Mr. Merida
recommended the purchase based on emails from Mr. Gifford and
Mr. Parsons and a signed letter from Mrs. Parsons, even
though the proposal quoted the $10.5 million purchase price
without indicating the price per pound or the total quantity
of steel purchased.
The Scott Rice Fraud
September 2010, Elena Harris, the former chief financial
officer for furniture store Scott Rice LLC reported to the
FBI her suspicion that one of the store's sales
executives, James Stewart, was engaging in fraudulent
transactions with the Nation. This triggered a federal
investigation that revealed a fraud scheme involving Mr.
Merida, Builders Steel's Mr. Parsons, and Mr. Stewart in
which they financed a hunting safari in Africa by submitting
false invoices from the Scott Rice store totaling $345, 000,
which were approved by Mr. Merida and Flintco's Mr.
Gifford on behalf of the Nation.
The Nation's Discovery and Investigation of the Steel
the Nation had paid approximately $9.25 million to Builders
Steel,  tribal auditors discovered during an
October 2010 visit to the Builders Steel storage yard that at
least half of the allegedly prepurchased steel was missing.
The Nation engaged Michael Burrage as its attorney to conduct
an investigation and to pursue a civil action on behalf of
the Nation against Builders Steel.
of that investigation, on November 19, 2010, tribal
executives ordered Mr. Merida to appear in his capacity as
the Nation's executive director of construction at Mr.
Burrage's law office. Mr. Burrage and another Nation
attorney told Mr. Merida when he arrived that a court
reporter, who was also present, would be taking his sworn
statement for the record.
interview transcript of Mr. Merida's "sworn
statement" reflects the following discussion about the
tribal attorneys' representation and the attorney-client
BY MR. BURRAGE:
Q. Jason, we've met. I'm Mike Burrage.
Q. And Bob is-Rabon is here with me. And there has been a
lawsuit filed by the Choctaw Nation of Oklahoma against
Builders Steel in the District Court of Bryan County,
Oklahoma. And we want to take your statement today-
Q. -in connection with that lawsuit. Okay.
Q. Now, what we do here, today-for the purposes of the
record, it's covered by the attorney/client privilege
because you do work for the Choctaw Nation.
Q. And the Nation asserts any privilege-attorney/client
privilege in connection ...