FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 11-10520
Plaintiff-Appellee,
D.C. No.
v. 1:09-cr-00273-
LJO-1
JEFF LIVINGSTON ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted
April 15, 2013—San Francisco, California
Filed August 7, 2013
Before: Susan P. Graber and Morgan Christen, Circuit
Judges, and John R. Tunheim,* District Judge.
Opinion by Judge Christen
*
Honorable John R. T unheim, United States District Judge for the
District of Minnesota, sitting by designation.
2 UNITED STATES V . LIVINGSTON
SUMMARY**
Criminal Law
The panel affirmed convictions for mail fraud (18 U.S.C.
§ 1341) and theft by an officer or employee of a gaming
establishment on Indian lands (18 U.S.C. § 1168(b)).
The panel held that the location of the gaming
establishment is not an element of the offense under
§ 1168(b), and that the allegations in the indictment were
sufficiently specific to apprise the defendant of the specific
offenses with which he was charged.
The panel also held that the district court’s jury
instructions correctly defined “intent to defraud,” and that the
district court did not abuse its discretion by admitting prior
acts evidence under Fed. R. Evid. 404(b).
COUNSEL
Ann C. McClintock (argued), Assistant Federal Defender, and
Daniel J. Broderick, Federal Defender, Sacramento,
California, for Defendant-Appellant.
Kirk E. Sherriff (argued), Assistant United States Attorney,
and Benjamin B. Wagner, United States Attorney, Fresno,
California, for Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . LIVINGSTON 3
OPINION
CHRISTEN, Circuit Judge:
Jeff Livingston appeals his convictions for mail fraud
(18 U.S.C. § 1341) and theft by an officer or employee of a
gaming establishment on Indian lands (18 U.S.C. § 1168(b)).
Livingston argues that, in prosecutions under § 1168, the
government must prove the gaming establishment is actually
located on Indian lands. Because this purported element of
the offense was not alleged in the indictment or included in
the jury instructions, Livingston maintains that his conviction
must be reversed. Livingston also argues that the indictment
did not adequately allege mail fraud and that the jury
instructions did not correctly define “intent to defraud.”
Finally, Livingston argues the district court erred by
admitting evidence of prior acts pursuant to Federal Rule of
Evidence 404(b).
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
conclude the location of the gaming establishment is not an
element of the offense under 18 U.S.C. § 1168(b) and that the
indictment adequately alleged mail fraud and theft by an
officer or employee of a gaming establishment on Indian
lands. We see no error in the jury instructions or in the
admission of the prior acts evidence under Rule 404(b). We
affirm Livingston’s convictions.
I. BACKGROUND
A. Statutory Background
Section 1168 provides criminal penalties for officers,
employees, or licensees who steal from gaming
4 UNITED STATES V . LIVINGSTON
establishments “operated by or for or licensed by an Indian
tribe pursuant to an ordinance or resolution approved by the
National Indian Gaming Commission.” 18 U.S.C. § 1168(b).
The statute is titled “Theft by officers or employees of
gaming establishments on Indian lands.”
Section 1168 is part of the Indian Gaming Regulatory Act
(“IGRA”). Pub. L. No. 100–497, 102 Stat. 2487 (1988).
IGRA regulates tribal gaming activity on Indian lands.
25 U.S.C. §§ 2701(1), 2701(3), 2702(2), 2702(3). To
facilitate IGRA’s objectives, Congress established the
National Indian Gaming Commission (“Commission”).
25 U.S.C. §§ 2702(3), 2704.
IGRA requires that an Indian tribe have a Commission-
approved gaming ordinance or resolution before offering
certain classes of gaming activity. 25 U.S.C. § 2710(b), (d).
Even though IGRA “limits tribal gaming to locations on
‘Indian lands,’” N. Cnty. Cmty. Alliance v. Salazar, 573 F.3d
738, 741 (9th Cir. 2009), a proposed ordinance need not
specify the location of a proposed gaming establishment, id.
at 746, and the Commission is not obligated to make an
Indian lands determination as part of the process of approving
a proposed ordinance, id. at 748.
B. Factual and Procedural Background
Livingston was the general manger of the Chukchansi
Gold Resort and Casino from May 2005 through January
2008. Chukchansi Gold is owned and operated by the
Picayune Rancheria of the Chukchansi Indians. Chukchansi
Gold’s gaming ordinance was approved by the Commission
“for gaming only on Indian lands.”
UNITED STATES V . LIVINGSTON 5
Livingston was indicted in July of 2009 on two counts of
theft by an officer of a gaming establishment on Indian lands
under 18 U.S.C. § 1168(b). The original indictment alleged
that Livingston used a Chukchansi Gold credit card to
purchase a personal vacation and to make a down payment on
a personal vehicle. Before trial, Livingston orally moved to
dismiss the indictment. He argued the government would be
unable to prove Chukchansi Gold was operated pursuant to a
Commission-approved ordinance because it would be unable
to prove that Chukchansi Gold is actually located on Indian
lands. The district court denied the motion to dismiss
because it was unclear what the government would be able to
prove at trial. The first jury deadlocked.
Before the case was re-tried, Livingston moved again to
dismiss the indictment on the same general grounds. The
district court’s order denying the second motion to dismiss
reviewed the title history of the relevant land and concluded
that Livingston had not met his burden of showing that the
government would be unable to prove that Chukchansi Gold
was operated pursuant to a Commission-approved ordinance.
But the district court also ruled that, at trial, the government
would have to prove beyond a reasonable doubt that the
Chukchansi Gold casino is located on Indian lands. In ruling
that this proof would be required, the district court apparently
reasoned that Chukchansi Gold’s ordinance was approved
“for gaming only on Indian land.”
The government filed a superseding indictment in
September 2010 alleging a third violation of § 1168(b) based
on Livingston’s use of a Chukchansi Gold credit card to
purchase sports and music memorabilia. It also alleged six
counts of mail fraud. Livingston moved to dismiss the
superseding indictment on the ground that it was
6 UNITED STATES V . LIVINGSTON
insufficiently specific with respect to the mail fraud counts.
He also renewed his argument that the indictment should be
dismissed because it did not allege that the Chukchansi Gold
casino is on Indian lands. The district court concluded the
mail fraud counts were alleged with sufficient specificity and
that the location of the casino is not a separate element of
§ 1168(b). The case went to trial a second time and a jury
convicted Livingston on all counts.
II. DISCUSSION
A. Sufficiency of the Indictment
On appeal, Livingston argues the superseding indictment
was insufficient because it did not allege that the Chukchansi
Gold casino is on Indian lands, did not provide adequate
notice of one of the alleged violations of § 1168(b), and did
not provide sufficient notice of the mail fraud charges.
We review the sufficiency of an indictment de novo.
United States v. Milovanovic, 678 F.3d 713, 719 (9th Cir.
2012) (en banc).
An indictment must provide the defendant
with a description of the charges against him
sufficient to (1) enable him to prepare his
defense; (2) ensure him that he is being
prosecuted on the basis of facts presented to
the grand jury; (3) enable him to plead double
jeopardy against a later prosecution; and (4)
inform the court of the facts alleged so that it
can determine the sufficiency of the charge.
UNITED STATES V . LIVINGSTON 7
United States v. Bohonus, 628 F.2d 1167, 1173 (9th Cir.
1980). “To satisfy these requirements, the indictment must
allege the elements of the offense charged and the facts which
inform the defendant of the specific offense with which he is
charged.” Id. (citing Hamling v. United States, 418 U.S. 87,
117–18 (1974)).
1. Theft from a gaming establishment on Indian
lands
a. Elements
We first consider whether § 1168(b) requires proof that
the gaming establishment is located on Indian lands, and we
begin that inquiry by examining the language of the statute.
See United States v. Johnson, 680 F.3d 1140, 1144 (9th Cir.
2012).
The text of § 1168(b) requires only that the gaming
establishment be operated pursuant to a Commission-
approved ordinance or resolution. Livingston argues the title
of the statute, “Theft by officers or employees of gaming
establishments on Indian lands,” creates an ambiguity when
juxtaposed against the statutory language. But because the
statute itself is unambiguous, its title is immaterial. See
Carter v. United States, 530 U.S. 255, 267 (2000) (“[T]he
title of a statute is of use only when it sheds light on some
ambiguous word or phrase in the statute itself.” (internal
quotation marks and alterations omitted)).
Livingston also argues that the location of the gaming
establishment is an implicit jurisdictional element of § 1168.
We do not agree that congressional authority to criminalize
theft from a tribal gaming establishment derives from the
8 UNITED STATES V . LIVINGSTON
location of the gaming establishment. The Indian Commerce
Clause “provide[s] Congress with plenary power to legislate
in the field of Indian affairs.” Cotton Petroleum Corp. v. New
Mexico, 490 U.S. 163, 192 (1989). Section 1163 of Title 18
criminalizes embezzlement and theft from Indian tribal
organizations. 18 U.S.C. § 1163. In United States v.
Anderson, 391 F.3d 1083, 1087 (9th Cir. 2004), we held that
§ 1163 regulates conduct within the scope of the Indian
Commerce Clause. Anderson relied on cases upholding the
Major Crimes Act (18 U.S.C. § 1153) and the Federal
Enclave Act (18 U.S.C. § 1152) as legitimate exercises of
congressional authority under the Indian Commerce Clause.
391 F.3d at 1087 (citing United States v. Lomayaoma,
86 F.3d 142, 145–46 (9th Cir. 1996), and United States v.
Keys, 103 F.3d 758, 762 (9th Cir. 1996)). Anderson reasoned
that, “[i]f it is within Congress’s power to regulate crimes
committed by or against an Indian in Indian country, then
Congress did not exceed its power under the Indian
Commerce Clause by making it a crime for anyone, including
an Indian, to steal funds or property of an Indian tribal
organization.” Id.
Because Congress’s authority under the Indian Commerce
Clause extends to theft from tribal organizations generally, it
also extends to theft by an officer from a gaming
establishment operated or licensed by an Indian tribe.
Therefore, federal jurisdiction does not depend on proof that
the gaming establishment at issue in a § 1168(b) prosecution
is located on Indian lands.
Livingston also argues that § 1168(b) requires proof that
the gaming establishment is on Indian lands because it is part
of an overarching statutory scheme that applies only to tribal
gaming activity on Indian lands.
UNITED STATES V . LIVINGSTON 9
Livingston is correct that IGRA “limits tribal gaming to
locations on ‘Indian lands,’” N. Cnty., 573 F.3d at 741,1 but
“[t]he starting point in discerning congressional intent is the
existing statutory text.” Lamie v. United States Tr., 540 U.S.
526, 534 (2004). The text of § 1168(b) only requires the
government to prove tribal operation or licensing of the
gaming establishment pursuant to a Commission-approved
ordinance or resolution. Unless the plain language of a
statute leads to an absurd or unconstitutional result, the
court’s function is to enforce the statute according to its
terms. See id. Plainly, Congress required proof of
Commission approval, not proof of a gaming establishment’s
location.
Livingston argues that the plain language of the statute is
inconsistent with IGRA’s statutory framework, which applies
to gaming activity on Indian lands. Even if the statute’s
requirement of proof of Commission approval, rather than
proof of the gaming establishment’s location, could
theoretically result in prosecutions under § 1168(b) for thefts
from gaming establishments not located on Indian lands, see
N. Cnty., 573 F.3d at 747 (noting that a tribe could obtain
approval of a non-site-specific gaming ordinance and then
theoretically build a gaming facility on non-Indian lands),
that result would not be “absurd” because it would not be
inconsistent with IGRA’s limitations on gaming activity. We
are not persuaded by Livingston’s argument that IGRA’s
1
“Tribal gaming on non-Indian lands is not authorized by or regulated
under IGRA.” N. Cnty., 573 F.3d at 744 (citing Facility License
Standards, 73 Fed. Reg. 6019–01, 6022 (Feb. 1, 2008)). “Gaming that
does not take place on Indian lands is subject to all state and local
gambling laws and federal laws apart from IGRA.” 73 Fed. Reg. at 6022
(emphasis added).
10 UNITED STATES V . LIVINGSTON
statutory framework requires proof of the gaming
establishment’s location for prosecutions under § 1168(b), in
contravention of the statute’s plain terms.
We conclude that the location of the gaming
establishment is not an element of § 1168(b) and,
accordingly, that the government did not have to allege the
location of the Chukchansi Gold casino in the indictment.
b. Sufficiency of notice
Livingston separately argues that the superseding
indictment insufficiently alleged one violation of § 1168
because it did not inform him of precisely what property was
stolen, or when. Count 9 of the superseding indictment
alleged that between October 2007 and December 2007,
Livingston “use[d] a Chukchansi corporate credit card to
purchase, and caus[ed] Chukchansi to pay for, sports and
music memorabilia for [his own] personal benefit.”
Livingston argues that the indictment was deficient because
it did not identify what sports and music memorabilia was
purchased, and because he may have been convicted for
conduct that was not presented to the grand jury.
“[T]he test of sufficiency of the indictment is not whether
it could have been framed in a more satisfactory manner, but
whether it conforms to minimal constitutional standards.”
United States v. Hinton, 222 F.3d 664, 672 (9th Cir. 2000).
Here, the indictment conformed to constitutional standards
because it alleged a narrow, three-month window during
which the theft allegedly took place, it identified the items
purchased as “sports and music memorabilia,” and it
identified the alleged method of payment—a company credit
card. The indictment alleged all elements of § 1168 and
UNITED STATES V . LIVINGSTON 11
sufficiently specific factual content to apprise Livingston of
the specific offense with which he was charged.
2. Mail fraud
Livingston argues the indictment contained only
conclusory statements supporting the mail fraud charges and
that it failed to provide notice of his allegedly illegal conduct.
He also argues that, because the mail fraud allegations were
not sufficiently specific, it is unclear whether the jury
convicted him on the same evidence the grand jury relied
upon to indict him.
To support this argument, Livingston relies primarily on
United States v. Cecil, 608 F.2d 1294 (9th Cir. 1979) (per
curiam), and a Tenth Circuit case, United States v. Curtis,
506 F.2d 985 (10th Cir. 1974). Cecil involved a “rather
barren” indictment that tracked the text of the relevant
conspiracy statutes and made “only two specific allegations
concerning the conspiracies”—the locations of the
conspiracies and the names of co-conspirators. 608 F.2d at
1296–97. The indictment in Curtis did not identify the
scheme to defraud or the false and fraudulent pretenses or
representations alleged by the government. 506 F.2d at 989.
Because the indictment was “vague” and “confusing,” the
Tenth Circuit concluded “the grand jury may have had a
concept of the scheme essentially different from that relied
upon by the government before the trial jury.” Id.
In contrast to Cecil, the superseding indictment in this
case alleged that, “[w]hile he was Chukchansi’s general
manager, the defendant engaged in a scheme to defraud
Chukchansi by making a series of personal purchases, for the
benefit of himself and other private individuals, using
12 UNITED STATES V . LIVINGSTON
Chukchansi money.” In other words, the superseding
indictment alleged that Livingston used company funds to
make personal purchases. It identified “vacation travel, down
payments on personal vehicles, golf packages, jewelry, and
autographed sports and music memorabilia” as the relevant
purchases. The superseding indictment described the means
by which Livingston carried out the scheme as “using his
Chukchansi corporate credit card, using a staff member’s
corporate credit card, and by . . . having Chukchansi billed for
. . . items.” The indictment also identified six specific
mailings—checks and credit card statements—underlying
each of the six counts of mail fraud.
In contrast to the indictment in Curtis, the superseding
indictment in this case was not vague or confusing. It
generally alleged that Livingston devised a scheme to defraud
or to obtain money by means of false pretenses, but it also
described the scheme in constitutionally adequate factual
detail. Assuming the truth of the indictment’s allegation that
Livingston “purported to make [the personal] purchases for
the benefit of Chukchansi,” United States v. Buckley,
689 F.2d 893, 897 (9th Cir. 1982), the pretenses for the
purchases were false. Livingston argues that the indictment
did not identify whether any pretense was explicit, but false
pretense was necessarily implied by use of the company
credit card to make personal purchases. Finally, each mail
fraud count was supported in the indictment by a description
of a check or credit card statement.
When “read in its entirety, construed according to
common sense, and interpreted to include facts which are
necessarily implied,” United States v. Givens, 767 F.2d 574,
584 (9th Cir. 1985), the superseding indictment alleged the
elements of mail fraud with adequate factual detail to put
UNITED STATES V . LIVINGSTON 13
Livingston on notice of the specific offenses with which he
was charged. There is no danger that the trial jury had a
different concept of Livingston’s scheme than the grand jury.
B. Jury Instructions
Livingston challenges the jury instructions on two
grounds. First, he argues that the district court did not
instruct the jury that the location of the gaming establishment
is an element of § 1168. Second, he argues that the district
court erred by declining to instruct the jury that mail fraud
requires a finding of intent to cause financial harm.
“Whether a jury instruction misstates elements of a
statutory crime is a question of law reviewed de novo.”
United States v. Romo-Romo, 246 F.3d 1272, 1274 (9th Cir.
2001) (internal quotation marks omitted).
1. Theft by an officer of a gaming establishment on
Indian lands
Because we conclude that the location of the gaming
establishment is not an element of § 1168(b), we reject
Livingston’s contention that the district court erred by not
instructing the jury that the government had the burden of
proving the gaming establishment was on Indian land.
2. Mail fraud
Livingston argues that the district court’s mail fraud
instruction was erroneous because it did not require the jury
to find that he acted for the purpose of causing financial loss
to another. The district court’s mail fraud instruction defined
“intent to defraud” as “the intent to deceive or cheat,”
14 UNITED STATES V . LIVINGSTON
consistent with Ninth Circuit Model Criminal Jury
Instructions § 3.16. In United States v. Treadwell, 593 F.3d
990 (9th Cir. 2010), we upheld an identical instruction in the
context of wire fraud and explained that intent to cause
pecuniary harm is not required. Id. at 994, 996–99.
Livingston’s argument can be resolved on the same grounds;
the district court correctly defined “intent to defraud.” Id. at
998–99; see also United States v. Shipsey, 363 F.3d 962,
967–68 (9th Cir. 2004) (identical instruction “correctly
defined intent”).
C. 404(b) Evidence
“Evidentiary rulings admitting evidence of other acts
under Federal Rule of Evidence 404(b) are reviewed for an
abuse of discretion, but whether the evidence of other acts is
relevant to the crime charged is reviewed de novo.” United
States v. Castillo, 181 F.3d 1129, 1134 (9th Cir. 1999)
(citation omitted).
Federal Rule of Evidence 404(b)(1) prohibits evidence
“of a crime, wrong, or other act . . . to prove a person’s
character in order to show that on a particular occasion the
person acted in accordance with the character.” Fed. R. Evid.
404(b)(1). But Rule 404(b)(2) permits introduction of such
evidence to prove “motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of
accident.” Fed. R. Evid. 404(b)(2).
Here, the government presented evidence that Livingston
purchased a golf bag and a football helmet with Chukchansi
funds for his own personal use. Before trial, the district court
ruled that this evidence was relevant to intent and to absence
UNITED STATES V . LIVINGSTON 15
of mistake. The court admitted the evidence pursuant to Rule
404(b).
Livingston argues that the government did not establish
at trial that the golf bag and football helmet were stolen and
therefore the prior act evidence was irrelevant. We disagree.
Livingston admitted to purchasing the items with a
Chukchansi Gold credit card and testified that the items were
delivered to him personally. Livingston also specifically
testified that he brought the football helmet and golf bag back
to the casino and gave them to the marketing department.
A former Chief Financial Officer of the Chukchansi Gold
casino, Bruce King, testified that the casino never received
the football helmet. King further stated that Livingston never
mentioned his purchase of the helmet, and that the helmet
was expensive enough that it would have been reflected on
the casino’s balance sheet if it had been purchased for, and
received by, the casino. King also testified that he was
unaware of the casino receiving the golf bag and that a
number of employees would have been interested in the golf
bag because they were golfers.
Howard Davies, a casino investigator, testified that he did
not find the football helmet or the golf bag when he searched
the Chukchansi Gold casino. In addition to physically
searching many areas of the casino, including the marketing
department, Davies interviewed people at the casino and
testified that Livingston claimed he left the items at the
auction where he purchased them.
Evidence is relevant if it “has any tendency to make a fact
more or less probable than it would be without the evidence”
and “the fact is of consequence in determining the action.”
16 UNITED STATES V . LIVINGSTON
Fed. R. Evid. 401. The trial testimony of Livingston, King,
and Davies had a tendency to make it more probable that
Livingston purchased the football helmet and the golf bag and
took them for his own use. Those facts were of consequence
to the action insofar as they tended to show that Livingston
intended to use Chukchansi funds to purchase items for his
own use rather than doing so mistakenly. Fed. R. Evid.
404(b). The district court did not abuse its discretion by
admitting prior acts evidence regarding the football helmet
and golf bag.
III. CONCLUSION
The location of the gaming establishment is not an
element of the crime under 18 U.S.C. § 1168(b). The
superseding indictment gave sufficient notice of each count
of theft from a gaming establishment on Indian lands and of
mail fraud, and the jury instructions correctly defined both
crimes. The district court properly allowed the evidence of
prior acts.
The judgment of the district court is AFFIRMED.