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United States v. Merida

United States Court of Appeals, Tenth Circuit

July 12, 2016

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JASON BRETT MERIDA, Defendant-Appellant.

         Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:14-CR-00020-JHP-1)

          J. Lance Hopkins, Underwood Law Firm, Tahlequah, Oklahoma, for Defendant -Appellant.

          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 - Appellee.

          Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.

          MCHUGH, CIRCUIT JUDGE.

         I. INTRODUCTION

         Jason 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.

         II. BACKGROUND

         A. Factual Background

         As the 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.

         1. Schemes and Fraud

         Between 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.

         a. The Missouri Hunting/Worth Group Scheme

         In 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.

         b. The Steel Fraud

         In 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.

         c. The Scott Rice Fraud

         In 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, [1] which were approved by Mr. Merida and Flintco's Mr. Gifford on behalf of the Nation.

         2. The Nation's Discovery and Investigation of the Steel Fraud

         After the Nation had paid approximately $9.25 million to Builders Steel, [2] 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.

         As part 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.[3]

         The interview transcript of Mr. Merida's "sworn statement" reflects the following discussion about the tribal attorneys' representation and the attorney-client privilege:

BY MR. BURRAGE:
Q. Jason, we've met. I'm Mike Burrage.
A. Uh-huh
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-
A. Uh-huh
Q. -in connection with that lawsuit. Okay.
A. 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.
A. Uh-huh.
Q. And the Nation asserts any privilege-attorney/client privilege in connection ...

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