United States v. Newell

United States Court of Appeals
For the First Circuit

Nos. 09-1590
09-1614

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT L. NEWELL and JAMES J. PARISI, JR.

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Torruella, Ripple,* and Lipez,
Circuit Judges.

Mary A. Davis, with whom Tisdale & Davis, P.A. was on brief,
for appellant Newell.
George T. Dilworth, with whom David M. Kallin and Drummond
Woodsum & MacMahon were on brief, for appellant Parisi, Jr.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.

July 11, 2011

*
Of the Seventh Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. This case stems from extensive

financial mismanagement at the Passamaquoddy Tribe Indian Township

Reservation (the "Tribe") in Down East Maine. Defendants Robert

Newell, the former governor of the Tribe, and James Parisi, Jr.,

the Tribe's former finance director, were convicted for conspiracy

to defraud the United States under 18 U.S.C. § 371, as well as

violations of 18 U.S.C. §§ 287, 666 and 669, involving the misuse

of federal grant and tribal monies. On appeal, Newell and Parisi

raise a host of issues related to the federal court's jurisdiction

over "internal tribal matters," the sufficiency of the evidence,

the lower court's jury instructions, sentencing, and the

restitution order entered against them. For the reasons explained

below, we vacate Parisi's conviction on count five and remand for

clarification of certain issues related to the restitution order,

but otherwise affirm.

I.

The following facts are drawn from the parties' filings

supplemented by the record as necessary, and are presented in the

light most favorable to the verdict. See United States v. Poulin,

631 F.3d 17, 18 (1st Cir. 2011).

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 A. Background

The Passamaquoddy Tribe is a federally recognized Indian

tribe located in northern Maine.1 The Tribe is relatively small,

with fewer than seven hundred residents. It relies in large part

on federal grant and contract money for its financial survival.

During the period of time at issue -- roughly, September 2002 to

September 2006, i.e., Newell's tenure as tribal governor -- the

Tribe received between five and eight million dollars annually in

federal grants and contracts.

The Tribe's political leadership consists of a governor

and tribal council. In addition, the Tribe shares a 12-member

joint tribal council with its sister reservation in Princeton,

Maine. Council members receive no official salary, but many are

employed by the tribal government in other capacities, are

reimbursed for travel expenses, and receive "honoraria" that

approximate a salaried employee's vacation pay. The tribal

government provides administrative services to the tribal programs,

including bookkeeping and accounting services.

The Tribe receives funding from the Bureau of Indian

Affairs ("BIA") and the Department of Health and Human Services

("HHS") through the Indian Self-Determination and Education

Assistance Act. These grants are used to fund myriad tribal

1
There are two Passamaquoddy reservations; this case concerns
solely the Indian Township reservation located near Princeton,
Maine.

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services, including the police, fire, child welfare and wildlife

and parks departments, the housing authority, the Tribe's courts

and schools, and the Indian health center. The Tribe additionally

receives funding from HHS's Substance Abuse and Mental Health

Services Administration ("SAMHSA") for an HIV awareness and

substance abuse prevention program. The Tribe received a

Department of Justice ("DOJ") COPS program grant for police

equipment and training, as well as funding from the Environmental

Protection Agency ("EPA") for its environmental department and from

the Department of Housing and Urban Development ("HUD") for its

housing authority. Each of the federal contracts and grants

included terms and conditions specifying how they were to be used.

Generally, the contracts required the Tribe to use the funds to pay

for allowable direct costs of the identified programs, as well as

specified amounts of the indirect costs incurred by the tribal

government for administrative services. The awarded funds

generally could not be diverted for non-contract or grant purposes

without a contract amendment or agency approval.2

In addition to the federal grants and contracts, the

Tribe had income from its ownership interests "in three companies

[Dragon Cement, Creative Apparel and Northeast Blueberry Company]

2
A tribe receiving BIA funds under a "638 contract" may
reallocate funds intended for one program to another program funded
by the contract unless the funds have a separate funding code.
However, BIA funds cannot be diverted to non-BIA programs.

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that it purchased with money it received under the Indian Claims

Settlement Act." This income was on the order of "several million

dollars . . . annually."

Newell served as the Tribe's governor from 1986 to 1993,

and again from 2002 to 2006. Newell served as his own finance

director for the first year of his most recent term, but in the

fall of 2003 he hired Parisi to fill the position. Parisi had

worked as a banker but did not have experience with federal

contracts. In addition to Parisi, the finance department was

composed of several bookkeepers and a federal grant compliance

officer, Linda Lewey. Despite his official job title, Parisi

appeared to have had little actual authority, and would refer most

questions to Newell. There is also evidence that Parisi may have

been somewhat ostracized by at least some of his co-workers as he

was not a member of the Tribe.

During his tenure as governor, Newell exercised extensive

control over tribal governance in general, and the Tribe's finances

in particular. Newell would transfer funds between the various

accounts to pay for unauthorized expenses, including salaries for

individuals who did not actually work for the programs that were

funding them. Newell also caused the Tribe's various programs to

"loan" hundreds of thousands of dollars each year to the Tribe

which he then disbursed in the form of "general assistance" to

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Tribe members, including friends, family and political supporters.3

These loans were by and large never repaid.

We now sketch briefly the details of the transactions

relevant to the current appeals, leaving aside those uncontested on

appeal. Our discussion is somewhat condensed in light of the large

multitude of transactions, which were spread over a number of

years, involved a large cast of supporting characters, several

distinct funding sources, and the arcana of accounting practices

for federal grants and contracts.

B. The financial mismanagement

In 2003, the Tribe received a three-year, $350,000-per-

year grant from SAMHSA to fund its HIV and substance abuse program,

known as the Wonahkik program. The Wonahkik program ramped up

slowly. Roger Paul, the Wonahkik program coordinator, testified at

trial that the program did not "get a staff to start getting things

actually done" until January of 2004. As of October of 2003, the

program had only spent $86,354 of the $350,000 grant. In

September, Newell and Elizabeth Neptune, the director of the health

center, wrote to SAMHSA requesting permission to carry over the

remainder into the next fiscal year. In October, Faye Socobasin,

the Tribe's SAMHSA bookkeeper, filed a "269" form with SAMHSA

showing that the Tribe had $236,645 in unspent grant funds. Lewey,

3
The Tribe's General Assistance Office was set up to provide cash
assistance and other forms of assistance to needy tribal members.
All general assistance had to be approved by the governor.

-6-
the Tribe's federal grant compliance officer, signed off on the

form. Parisi was hired at around this time.

In February 2004, before SAMHSA had responded to the

request, Newell directed that the unspent funds be used to

reimburse the Tribe for salaries it had paid to three tribal

councilors despite the fact that they did not actually work for the

Wonahkik program.4 Newell insisted that the grant money "had to be

spent," and that if the Wonahkik program wasn't going to spend it,

"the Tribe would." Socobasin, at Lewey's instruction, then

prepared a journal entry form for the Tribe's records indicating

that the three individuals had been paid out of the SAMHSA grant on

or before September 30, 2003, the last day of the fiscal year.

Parisi signed the journal entry.

When SAMHSA notified the Tribe in April 2004 that it

would not permit the unused funds to be rolled over, Newell wrote

back, stating, among other things, that the Tribe's initial 269

report had been in error, and that the Tribe had spent an

additional $129,044 of the SAMHSA grant in salary expenditures in

FY 2003. Subsequently, Socobasin prepared a revised 269 form

reflecting the additional $129,044 expenditures, again dated to

appear as if they had occurred in September of 2003. Socobasin

4
The individuals that Newell and Parisi paid through these grants
worked for the tribal government, just not for the programs that
were funded by the federal grants. In other cases, the "ghost"
employees were employed at least part-time with the relevant
programs.

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refused to backdate the charges unless either Parisi or Newell

approved it. Parisi, rather than Lewey, subsequently signed the

revised 269 form. Newell told Socobasin that Parisi should sign

the revised 269 "so we can blame it all on him." In June 2004,

SAMHSA relented, and approved the Tribe's request to roll over the

unused grant funds.

It was during this time that the tribal council learned

that the Tribe's budget had been overspent to the tune of $1.6

million. At a contentious council meeting, Newell admitted he had

been using SAMHSA funds to pay council members, but insisted he had

the authority to do so. The council voted to strip Newell of

administrative authority, but backtracked when it came out that

this meant they would no longer receive general assistance

payments. The council insisted that subsequent checks, with the

exception of payroll and housing authority checks, be signed by two

council members. Undeterred and largely unimpeded, Newell was able

to secure the cooperation of sympathetic council members or, in

other cases, circumvent the council entirely by transferring funds

through online or wire transfers.

The Tribe continued to pay the salaries of council

members and other non-health center "ghost" employees with the

health center's funds throughout FY 2004. Wonahkik was not the

only program that saw its budget raided. Funds were "loaned" to

the tribal government from the Indian Health Services ("IHS")

-8-
contract, state Medicaid payments, and EPA and BIA grants. Several

of the tribal health services administrators objected, but Newell

and Parisi continued to authorize the payments. Parisi promised

that the non-employees would be taken off the health center's

payroll, and that the funds would be restored. When pressed by

Paul about the missing funds, Parisi replied that it was "normal"

for Tribes to use incoming grant money to pay pressing non-grant

related bills, and to replenish the funds later with other income,

an explanation that Paul conceded he found "reasonable."

Despite the earlier troubles, SAMHSA approved funding for

the Wonahkik grant for a second year. This time around, however,

SAMHSA required that the Tribe submit itemized claims for approved

expenses. Thus, when Parisi requested $81,779 in reimbursement

from SAMHSA in February of 2005, the claim was denied because it

was not correctly itemized. Parisi resubmitted correctly itemized

forms to SAMHSA in March, but because the requested amount included

the salaries of individuals who did not work for Wonahkik, SAMHSA

ultimately refused to pay for those claims.

Neither Newell nor Parisi was accused of lining their own

pockets. (Parisi appears to have been motivated mostly by a desire

to retain his employment with the Tribe). Newell, however, did

improperly redirect federal grant money to help friends and family.

For instance, shortly after Newell took office in the fall of 2002,

he refused to release funds that the BIA had awarded the Tribe

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through its Housing Improvement Program. Instead, he spent the

money on his friends, family, and tribal council members and their

families, including William Nicholas, the Tribe's current governor.

Similarly, in June of 2004, Newell had Carol Roehrich, the Tribe's

BIA bookkeeper, issue his son, Roger, a check for $1020, ostensibly

to reimburse Roger for the costs of attending training in Boston.

Alex Nichols, Roger's supervisor, knew that Roger did not attend

training in Boston and asked Roger to return the money. Newell

insisted that Roger needed help, and the funds were never repaid.

On other occasions, Newell dipped into Housing Authority funds for

wedding donations, unspecified small loans, travel reimbursement

for his son, Eric, and "general assistance" for two other Tribe

members.

Despite his efforts to keep the political wheels well-

greased, by the spring of 2005, Newell was facing increasing

opposition to his leadership. Several of the health center

administrators -- including Roger Paul, the head of Wonahkik, and

Elizabeth Neptune, the health center's director -- participated in

an anti-Newell protest and went to federal investigators with their

complaints. Newell responded by cleaning house, firing Paul,

Neptune and three other health center administrators. Bookkeepers

who protested the interfund "loans" found themselves suspended.

Newell then reassured Don Payne, the new head of the health center,

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that although health center funds were being used for other

purposes, the funds would be restored.

The misapplication of funds continued apace, and the

Tribe's financial situation deteriorated further. As of the fall

of 2005, the Tribe owed $866,000 to the BIA and IHS grants. The

Tribe had budgeted $621,000 in "tribal assistance" in FY 2005, but

had spent nearly three times that amount. Newell continued to try

to cover the Tribe's costs by "borrowing" money from the incoming

federal grants, and Parisi continued to offer assurances to the

affected programs that the funds would be repaid. Although some of

the non-employees who had been drawing salaries from the grants

were finally removed at this point, some remained, and others were

added on.

Newell and Parisi received multiple warnings at around

this time that their conduct was of questionable legality. In

early 2005, the Tribe's outside auditor warned them that "pooling"

federal funds was permissible, but that the funds should only be

used for allowable purposes, a point reiterated by Lewey, the

federal grant compliance officer, and Roehrich, the BIA

bookkeeper.5 Harry Schade, a former finance director for the

5
Ronald Smith, the Tribe's outside auditor, testified at trial
that interfund transfers were a "necessary part of the business" in
light of the complexity of tribal finances, and that he had advised
Newell and Parisi that they were consistent with accepted
government practices, provided the money was returned and accounted
for within "a reasonable time frame." Smith did not specify
precisely what such a time frame would be, but suggested "a week"

-11-
Tribe, was brought back in June of 2005 to help Newell and Parisi

sort out the Tribe's increasingly desperate finances. However,

Schade's repeated demands that non-approved employees be taken off

the health center's payroll were ignored.

Newell and Parisi were also put on notice by warnings

from various federal officials. IHS officials confronted Newell

and Parisi in August 2005 about delinquent audits and interfund

transfers. Despite the fact that Schade and Payne had asked the

IHS not to release the funds because Newell and Parisi were raiding

the accounts, the IHS was satisfied with Newell and Parisi's

assurances that the funds would not be misused and that they would

conduct an audit. IHS then agreed to a lump sum wire transfer of

$2,000,000 for FY 2006. Within a week, over $400,000 had been

diverted to the tribal government at Newell's direction. Newell

and Parisi directed the health center to "loan" the tribal

government a further $200,000 over the next two months. In a by-

now-familiar scene, Schade protested and was subsequently fired.

IHS officials began inquiring as to why so little of the grant

funds remained, but were rebuffed by Newell.

One of the "loans" in question occurred in November of

2005. At this point in time, the Tribe, together with its sister

Pleasant Point reservation, was engaged in an effort to place a

referendum question on the 2007 ballot asking for approval of a

as an example.

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combined race track and casino, otherwise known as a Racino. The

Joint Tribal Council hired an outside firm to solicit the necessary

signatures to ensure that the question was placed on the ballot.

Newell realized that the Tribe lacked the funds to pay for its

share of the expenses and so decided once again to dip into his

federal slush fund, a/k/a the health center budget. Parisi

transmitted Newell's request to Frances Neptune, the IHS

bookkeeper, who drew up a check for $33,000. After the payment was

approved by two tribal council members, it was picked up by Joseph

Socobasin, the Tribe's lieutenant governor and delivered to the

Joint Tribal Council. This money was never returned to the health

center.

As he neared the end of his term, Newell must have

realized that the game was up, as the Tribe's financial situation

had become increasingly precarious at the same time that federal

investigators were closing in on him. In the spring of 2006, the

situation had become so dire that in order to meet the Tribe's

payroll obligations, Newell directed Parisi to transfer funds from

the tribal employees' 401K account, and directed the account

bookkeeper not to file the mandatory report with the company that

managed the 401K program. Parisi also directed the payroll clerk

to pay only net salaries, meaning that state and federal tax

withholdings, 401K contributions, state garnishments for child

support or back taxes, and rent (for those employees who lived in

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HUD housing) were not paid. Among the sources tapped to cover

payroll was a DOJ COPS grant for the Tribe's police department.

The grant's remaining $30,000 of unspent funds was pressed into

service to meet the Tribe's payroll obligations. When Newell left

office in September, after losing the election to William Nicholas,

the Tribe only had enough money left to pay one person's salary --

Newell's.

When Newell stepped down as governor, "the Tribe's

employees had not been paid in two weeks, worker's compensation

payments had not been made, vendors and programs were owed over $3

million, and the Tribe owed federal programs $1.7 to $1.8 million."

In addition, the health center -- regularly raided by Newell -- had

outstanding debts of approximately $850,000. An audit subsequently

revealed that the Tribe had no cash available, owed other funds

approximately $1.6 million, lost $2 million from its general fund,

and had once again overspent its general assistance budget by

approximately $1.1 million.

In the spring of 2008, Newell and Parisi were charged by

indictment with thirty counts of misapplying federal funds, making

false statements to federal agencies, submitting false claims, and

misapplying retirement, police, housing authority and other program

funds, as well as conspiracy to defraud the United States.6

6
For reference, a summary of the charges brought against Newell
and Parisi is attached as an appendix.

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 C. Trial

At trial, Newell argued that he believed in good faith

that he had the authority to act as he did, and that his intent had

been to help the Tribe's impoverished and needy residents. Parisi

argued that he was an outsider who simply did as Newell instructed.

The jury found Newell guilty of all counts except count 10, and

found Parisi guilty of counts 1, 5, 8, 9, 11-15, 29 and 30. Both

defendants moved for acquittal, and Parisi moved for a new trial.

Both defendants' motions were denied by the district court.

Newell's guideline range was determined to be 151 to 188

months. The court sentenced him instead to concurrent 60 month

terms on counts 2, 3, 7-9, 11, 29 and 30, and concurrent 31 month

terms on counts 1, 4-6 and 12-28, followed by three years of

supervised release. Parisi's guidelines range was determined to be

51-63 months. The court sentenced him to a year and a day, also

followed by three years of supervised release. In addition, under

the Mandatory Victim Restitution Act (MVRA), codified at 18 U.S.C.

§ 3663, the court imposed a restitution order of $1,741,876.18 on

Newell and $1,602,516.13 on Parisi, payable jointly and severally.7

7
Newell's restitution order was composed of: (1) $305,693.77 to
the IHS; (2) $195,895.35 to HHS; (3) $782,693 to the BIA; (4)
$45,230.05 to the EPA; (5) $30,000 to the DOJ COPS program; (6)
$23,796,96 to the Maine Office of Substance Abuse; (7) $43,367.50
to the Tribe's retirement fund; (8) $215,199.55 to the tribal
government; and (9) $100,000 to On Point underwriting.

Parisi's restitution order was identical, except for (4) and
(8). The district court found by a preponderance of the evidence

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 This appeal followed.

II. Did the district court have jurisdiction?

Newell, joined by Parisi, first contends that counts 1,

2, 29 and 30 fall outside the jurisdiction of the federal courts.

Essentially, the appellants argue that the Passamaquoddy Tribe has

negotiated agreements with the state of Maine and the federal

government granting them exclusive jurisdiction over "internal

tribal matters," and that the conduct charged in counts 1, 2, 29

and 30 should be understood as such.

We note that the parties appear to have conflicting

understandings of the nature of the claim being raised. The

government appears to construe the claim as one of "tribal

sovereign immunity," and contends that Parisi, at least, has waived

any such claim. Parisi, for his part, insists that the argument

instead concerns our subject matter jurisdiction, and hence avoids

the "[o]rdinary raise-or-waive rules" which the government seeks to

enforce against him. See Cabán-Hernández v. Philip Morris USA,

Inc., 486 F.3d 1, 5 (1st Cir. 2007).8

that Parisi was not responsible for the losses to the EPA, and
deducted amounts tied to "acquitted conduct" from (8), lessening
the amount he was required to pay the tribal government to
$121,069.55.
8
There is some support for the government's interpretation.
Prior to trial, Newell presented a motion to dismiss asserting a
"privilege based upon the sovereignty and sovereign immunity of the
Passamaquoddy Tribe." The motion, which was ultimately denied by
the district court, cited the same statutory authority to support
the "tribal sovereign immunity" claim as the (allegedly)

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 As we have noted, an "objection to subject matter

jurisdiction is not waivable and may be raised for the first time

on appeal." F.A.C., Inc. v. Cooperativa de Seguros de Vida de

Puerto Rico, 449 F.3d 185, 189 (1st Cir. 2006). Even if the same

claims were presented below as a sovereign immunity defense, this

does not preclude the defendants from appealing to them, now, to

challenge our jurisdiction. Our review is de novo. Miller v.

Nichols, 586 F.3d 53, 58-59 (1st Cir. 2009) ("The existence of

federal subject matter jurisdiction . . . [is a] question[] of law,

subject to de novo review in this court.").

Relations between the Tribe and the state and federal

government are governed by an agreement that the parties arrived at

after the Passamaquoddy filed suit in the 1970s, asserting claims

to nearly two-thirds of Maine's land mass. The Tribe and the state

of Maine eventually reached a settlement, in which the Tribe "in

many respects gained the powers of a municipality under Maine law."

Akins v. Penobscot Nation, 130 F.3d 482, 484 (1st Cir. 1997). The

settlement granted the Tribe recognition under federal law as a

tribe, as well as entitlement to a portion of the income from an

$81.5 million settlement fund established by Congress. See 25

U.S.C. §§ 1723-24. In exchange, the Tribe's claims to Maine's

territory were extinguished, and the Tribe agreed that "with very

jurisdictional argument before us on appeal. The sovereign
immunity argument presented there appears to have transmogrified
into an argument anent subject matter jurisdiction here.

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limited exceptions," it was "subject to the laws of Maine." Akins,

130 F.3d at 485; see also Penobscot Nation v. Fellencer, 164 F.3d

706, 708 (1st Cir. 1999) (noting that "Maine was permitted to

extend its jurisdiction over the Nation to a greater degree than

most states exercise over other Indian Tribes"). The agreement

between the Tribe and the state of Maine was memorialized in the

Act to Implement the Maine Indian Claims Settlement, 30 M.R.S.A.

§§ 6201-14 (the "Implementing Act"). The Implementing Act was

subsequently ratified by Congress in the Maine Indian Claims

Settlement Act, at 25 U.S.C. §§ 1721-35 (the "Settlement Act").

Section 6206 of the Implementing Act states, in material

part, that "internal tribal matters, including . . . tribal

organization, tribal government, tribal elections and the use or

disposition of settlement fund income shall not be subject to

regulation by the State." 30 M.R.S.A. § 6206. This limitation on

state jurisdiction was incorporated into the federal Settlement Act

by reference. See 25 U.S.C. § 1725(f) ("The Passamaquoddy Tribe

. . . [is] hereby authorized to exercise jurisdiction, separate and

distinct from the civil and criminal jurisdiction of the State of

Maine, to the extent authorized by the Maine Implementing Act, and

any subsequent amendments thereto."). We have interpreted the

Settlement Act to interpose a bar to federal jurisdiction over

"internal tribal matters." See Akins, 130 F.3d at 485 ("[T]he

Nation in certain capacities functions as a municipality of Maine

-18-
and is reachable under state and federal law in that capacity, but

when it functions as a tribe as to internal tribal matters, it is

not.").

The operative question is, accordingly, whether the

conduct alleged in counts 1, 2, 29 and 30 constitute "internal

tribal matters." Newell's argument is that the government's

attempt to enforce 18 U.S.C. § 666(a)(1)(A) against him reaches

"internal tribal matters" because "the allocation of tribal money

amongst tribal accounts only affects tribal members, not

nonmembers" and concerns only matters of "tribal organization,

tribal government, and the use or disposition of settlement fund

income."9 He argues that "[f]ederal jurisdiction over these

allegations would be contrary to the purpose of the Settlement

Acts, which is to allow the Tribe to handle internal tribal

matters, particularly internal government matters."

9
Section 666(a)(1)(A) reads: "Whoever, if the circumstance
described in subsection (b) of this section exists -- being an
agent of an organization, or of a State, local, or Indian tribal
government, or any agency thereof, embezzles, steals, obtains by
fraud, or otherwise without authority knowingly converts to the use
of any person other than the rightful owner or intentionally
misapplies property that is valued at $5000 or more, and is owned
by, or is under the care, custody, or control of such organization,
government, or agency . . . shall be fined under this title,
imprisoned not more than 10 years, or both." 18 U.S.C. § 666
(a)(1)(A). The referred to circumstance is "that the organization,
government, or agency receives, in any one year period, benefits in
excess of $10,000 under a Federal program involving a grant,
contract, subsidy, loan, guarantee, insurance, or other form of
Federal assistance." Id. § 666(b).

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 Not surprisingly, Newell neglects to mention that

Congress specifically exempted the Tribe from several federal

criminal statutes in the Settlement Act -- but that § 666 is not

one of those exempted. See 25 U.S.C. § 1725(c). Indeed, Congress

specifically included Indian Tribes within the ambit of § 666(a),

which explicitly applies to agents of "Indian tribal government."

These observations suggest that assertion of federal jurisdiction

over counts 1, 2, 29 and 30 was not improper.10

10
We do not say that there could never be a challenge to the
enforcement of § 666(a)(1)(A) against the Penobscot or
Passamaquoddy Tribes. Although conditioned on the receipt of
federal funds, § 666(a)(1)(A) does not actually require the
misapplied funds to themselves be federal funds. The
jurisdictional question would thus be more difficult if the
indictment alleged misapplication of settlement fund income, the
use or disposition of which is specifically exempted by the
Implementing Act. See 30 M.S.R.A. § 6206 ("[T]he use or
disposition of settlement fund income shall not be subject to
regulation by the State.").

However, Newell has alleged only that "tribal income includes,"
and that the "statute reaches" settlement fund income, but has not
provided any more precise explanation of how counts 1, 2, 29 and 30
do so. What is evident is that these counts contain specific
allegations of conspiracy to defraud the United States and the
intentional misapplication of the Indian Township Housing
Authority's Project Income and NAHASDA accounts, the Tribe's BIA
638 contract, the tribal employees' retirement fund, and a DOJ COPS
grant. It is possible that some of these sources (perhaps the
Tribe's retirement funds and/or the Housing Authority's Project
Income account) were made up of settlement fund income. But we
simply cannot say from the record whether this is so. Moreover,
because Newell did not raise this issue below, there are no
relevant factual findings.

We have never considered whether there might, on some facts, be
a conflict between § 666(a)(1)(A) and 30 M.S.R.A. § 6206. In light
of the undeveloped factual basis for the claims, we do not decide
the issue today.

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 Although "tribes generally retain the right to self-

government, [they] are nonetheless subject to federal criminal

jurisdiction of both a specified and more general nature." United

States v. Boots, 80 F.3d 580, 593 (1st Cir. 1996) (internal

citations omitted). In Boots, the defendants were accused, inter

alia, of defrauding the Passamaquoddy Reservation of the honest

services of their police chief by attempting to bribe him. One of

the defendants claimed that he should have been acquitted "in

deference to tribal sovereignty." Id. at 592. We rejected this

claim, noting that the violations he was charged with "are not

specific to Native Americans, but rather are of general

applicability," and that even if such crimes "may involve 'an

independent federal interest to be protected,' . . . it is unclear

that one is required." Id. at 593 (internal citations omitted).

Conspiring to defraud the United States and misapplying

federal funds are, like the crimes defined by the wire fraud

statute at issue in Boots, crimes of general applicability.

Therefore, even were we to accept Newell's claim that there is no

federal interest in how the Tribe transfers its money between its

accounts, it is not clear that any "peculiarly federal interest" is

in fact required for such a statute to apply to the Tribe. Id., 80

F.3d at 593. Moreover, a less tendentious description of Newell's

conduct would in any case suggest that there may well be a relevant

federal interest, viz. an interest in ensuring that federal grants

-21-
and contracts are spent in the way the government intends them to

be spent. As the Supreme Court has held, when federal agencies

spend taxpayer dollars, Congress has an interest in ensuring that

this money is "not frittered away in graft or on projects

undermined when funds are siphoned off." Sabri v. United States,

541 U.S. 600, 605 (2004) (rejecting claim that § 666(a)(2) -- the

anti-bribery portion of the statute at issue here -- required proof

of a nexus between the federal funds received and the alleged

bribe). When "money can be drained off here because a federal

grant is pouring in there . . . [i]t is certainly enough that the

statutes condition the offense on a threshold amount of federal

dollars defining the federal interest." Id. at 606. Congress

presumably agreed that there was such an interest when it made

§ 666(a) explicitly applicable to Indian tribal governments.

Moreover, despite rather mysterious invocations of tribal self-

governance, Newell has not managed to explain how holding him, qua

governor of a Tribe that received millions of dollars a year in

federal financial assistance, criminally responsible for extensive

misuse of federal funds would interfere with a "right integral to

self-government." Boots, 80 F.3d at 593.

Finally, in Akins, a case about a tribe's timber

harvesting policies, we emphasized five factors that were "strong

considerations" to take into account in deciding whether a dispute

about tribal practices constitutes an internal tribal matter.

-22-
Akins, 130 F.3d at 486-87. These factors are (1) whether the

practice in question "purports to regulate only members of the

tribe," or if "the interests of non-members" are "at issue"; (2)

whether it "regulates the very land that defines the territory of

the Nation"; (3) whether it concerns the use of a natural resource

derived from the land; (4) whether it "implicate[s] or impair[s]

any interest of the state of Maine"; and (5) whether construing the

challenged practice as an internal tribal matter "is consistent

with prior legal understandings." Id. at 486-87. Applying these

factors to the current case reveals the following. First, the

interests of non-members -- at the very least, those of the federal

agencies in ensuring that the funds they award are properly spent

-- are clearly implicated. Second, the funds at issue include

state funds (count 10 alleged misuse of state Medicaid funds).

Finally, as our discussion has just indicated, prior legal

understandings support our finding that the challenged conduct does

not constitute an internal tribal matter.11

Because the conduct alleged in counts 1, 2, 29 and 30

involves mismanagement of federal grants and contracts, which are

subject to regulations that the Tribe is not free to ignore, we

hold that the conduct alleged in these counts do not constitute

internal tribal matters. We emphasize that the case before us

11
The other two Akins factors -- whether the practice concerns the
Tribe's use of its lands, or natural resources from the lands -- do
not apply here.

-23-
rests on malfeasance involving federal grant money, in which the

federal interest is clear. It would be a different case if the

counts attempted to apply § 666 to mismanagement of settlement fund

income. We express no opinion as to whether such a prosecution

would or would not implicate the internal tribal matters exception

to federal jurisdiction under the Implementing and Settlement Acts.

III. Was the evidence sufficient?

We now turn to Parisi's contentions that the evidence

failed, in several key respects, to sufficiently support the jury's

verdict. "We review a sufficiency claim de novo, drawing all

reasonable inferences in favor of the verdict to determine whether

a rational jury could find each element of the crime beyond a

reasonable doubt." United States v. Scott, 564 F.3d 34, 39 (1st

Cir. 2009).

A. Count 1

Parisi challenges the sufficiency of the evidence

supporting his conviction under count one, for conspiracy to

misapply government property in violation of 18 U.S.C.

§ 666(a)(1)(A), and to misapply the funds and assets of a health

care program, in violation of 18 U.S.C. § 669.12 To prove its case,

12
The governing conspiracy statute is 18 U.S.C. § 371, which
reads, in pertinent part, "If two or more persons conspire either
to commit any offense against the United States, or to defraud the
United States, or any agency thereof in any manner or for any
purpose, and one or more of such persons do any act to effect the
object of the conspiracy, each shall be fined under this title or
imprisoned not more than five years, or both."

-24-
the government had to show beyond a reasonable doubt that "(1) a

conspiracy existed; (2) the defendant knew of and voluntarily

participated in the conspiracy; and (3) there was an overt act in

furtherance of the conspiracy." United States v. Muñoz-Franco, 487

F.3d 25, 45 (1st Cir. 2007).

Parisi challenges his conspiracy conviction under heading

(1). Parisi argues that a conspiracy consists of an agreement

between two or more individuals to disregard or disobey the law,

United States v. Drougas, 748 F.2d 8, 15 (1st Cir. 1984), and that

simply doing what his employer asked of him was insufficient to

establish such an "agreement." The question is thus whether the

evidence was sufficient to allow a rational jury to conclude,

beyond a reasonable doubt, that Parisi and Newell came to an

agreement to "disregard or disobey" §§ 666(a)(1)(A) and 669, i.e.,

the statutes prohibiting the misapplication of government funds

generally and the funds and assets of a health care benefit program

specifically.

We have noted in similar circumstances that "[a] formal

agreement [between co-conspirators] is not required; rather '[t]he

agreement may be shown by a concert of action, all the parties

working together understandingly, with a single design for the

accomplishment of a common purpose.'" Muñoz-Franco, 487 F.3d at

45-46 (internal citation omitted) (quoting Am. Tobacco Co. v.

United States, 147 F.2d 93, 107 (6th Cir. 1944)). In that case,

-25-
employees of a bank and a development company were convicted for

conspiring under 18 U.S.C. § 371 to commit bank fraud, misapply

bank funds and make false entries in the books and records of the

bank. Id. at 45. We dismissed their sufficiency of the evidence

challenge, noting that the two bank officials "directly supervised"

and "worked closely with" the developer's loans, that the developer

and his employee "submitted many certifications for work not yet

completed," that one of the bank officials "repeatedly approved"

those certifications, that the same bank official "met frequently"

with the developer's employee regarding the status of their

business ventures, and that the bank officials failed to disclose

material information to the bank's Board of Directors. We held

that this was sufficient to allow a jury to infer an agreement

among the four defendants to defraud the bank. Id. at 46.

The nature of the evidence in this case is similar. The

evidence presented at trial showed, for instance, that Newell

channeled money from the accounts of various federally funded

programs into non-approved uses. These "interfund transfers" were

recorded as "loans," and while some were ultimately repaid, others

were not. Some of these expenditures went toward paying payroll

and general assistance, as well as the salaries of "ghost

employees," individuals who either no longer worked at the various

grant-funded programs, or did not work for the time claimed.

Parisi signed off on financial status reports filed with the

-26-
federal agencies that were funding the programs, certifying that

the money was spent in accordance with the grant's terms. Parisi

was well aware that the grant money could not be used

indiscriminately; indeed, he was repeatedly told as much by the

fund administrators themselves. Nevertheless, Parisi continued to

divert federal grant funds, including funds provided by SAMHSA

intended for the Tribe's health center, to payroll and tribal

government expenses. Parisi promised bookkeepers at these

federally-funded programs that the ghost employees would be removed

from payroll, but that did not happen. Similarly, Parisi assured

the manager of the Tribe's health center (funded by federal SAMHSA

grants) that the diverted funds would be repaid, although very

little ultimately was. This conduct persisted for a period of

nearly three years.

The evidence presented against Parisi was sufficient to

establish that even if there was no express agreement with Newell,

nonetheless there was an implied or tacit agreement. Newell

ordered that federal funds be misapplied and Parisi saw that they

were. This was the requisite "concert of action" evincing a

"common purpose." See Muñoz-Franco, 487 F.3d at 45-46. We will

not disturb the jury's verdict as to count one.13

13
Parisi insists that he was not conspiring with Newell but rather
"merely doing what Newell instructed him to do." This misconstrues
the issue. The issue is not why Parisi may have agreed to
participate in Newell's schemes; it is whether he so agreed. The
answer to that question is not affected one way or the other by the

-27-
 B. Count 5

Parisi next contends that he was improperly convicted

under count five, which alleged that he made a materially false

statement with regard to how $215,599.43 of a SAMHSA grant intended

for the Tribe's Wonahkik substance abuse and HIV prevention

programs was spent. Parisi signed and submitted a "financial

status report" with HHS claiming this amount was spent in

accordance with grant purposes. In reality, $129,044.67 was spent

to pay "ghost employees" -- Dennis Tomah, Sr., Dana Newell, and

John Stevens -- who did not work for those programs during the

relevant time period. Parisi's claims on appeal are, first, that

the government's evidence did not prove that his submission was

"knowing[] and willful[]" as required by 18 U.S.C. § 1001(a)(2)

and, second, that the form was in any case not "material" as it was

improperly filled out.14

"To establish a violation of 18 U.S.C. § 1001, the

government must prove that the defendant knowingly and willfully

made or used a false writing or document, in relation to a matter

observation that Parisi's only reason for being involved was
because he was employed by the Tribe.
14
Section 1001(a)(2) provides that "[e]xcept as otherwise provided
in this section, whoever, in any matter within the jurisdiction of
the executive, legislative, or judicial branch of the Government of
the United States, knowingly and willfully . . . (2) makes any
materially false, fictitious, or fraudulent statement or
representation . . . shall be fined under this title, imprisoned
not more than 5 years or . . . or both."

-28-
within the jurisdiction of the United States government, with

knowledge of its falsity." United States v. McGauley, 279 F.3d 62,

69 (1st Cir. 2002). "Willfulness . . . means nothing more in this

context than that the defendant knew that his statement was false

when he made it or . . . consciously disregarded or averted his

eyes from its likely falsity." United States v. Gonsalves, 435

F.3d 64, 72 (1st Cir. 2006).

Parisi contends that the government produced no evidence

showing that he knew that Tomah, Newell and Stevens had not worked

in the Wonahkik program during the specified time. The form

referenced a period of time prior to Parisi's employment at the

reservation, and the jury acquitted Parisi of actually misapplying

those particular funds (count three).

An examination of the trial transcript reveals the

following: at trial, Faye Socobasin (the tribal bookkeeper who

actually filled out the form that Parisi later signed) was asked by

the prosecutor if she had conversed with "either" Parisi or Newell

about the inappropriate use of the funds. She said she had, and

the prosecutor continued, "so you did have a conversation with

Robert Newell about this?" to which she replied, "Yes." The

prosecutor then asked if she discussed the matter with Parisi, and

she replied that "with Jim Parisi, I -- what I can remember is I

just did the 269 [the financial status report] and told him that it

-29-
had to be signed." The prosecutor then went on to establish that

Parisi in fact signed the 269 form.

Three days later, Linda Lewey, the Tribe's federal grant

compliance officer, testified that Parisi was present at two

meetings during which the issue of what to do about the unused

money in the SAMHSA grant was discussed. The first meeting was

apparently in December of 2003, when the decision was taken to

request permission from HHS to "roll over" the unused money into

the next fiscal year's budget. Lewey appears not to have been

questioned as to what, specifically, transpired at the second

meeting. As before, the prosecutor moved immediately to discuss

whether Parisi had in fact signed off on the fraudulent financial

reports.

The most specific testimony on the issue of Parisi's

knowledge of the falsehoods contained in the 269 form appears to

have been provided by Roger Paul, the Wonahkik program coordinator.

The prosecutor asked Paul whether he ever discussed payment of non-

program employees with Parisi. His reply was: "I don't remember

that issue exactly. There were many occasions I spoke to

Mr. Parisi, and there was one occasion I spoke to Mr. Parisi about

the finances, and I remember Mr. Parisi saying, well, that's what

Governor Newell wants done, and that's why we're doing it this

way." However, this statement is ambiguous in at least two key

respects. First, Paul testified only that he discussed "finances"

-30-
with Parisi. And, second, it is unclear when Paul had this

conversation with Parisi. Even if Paul's testimony is sufficient

to show that Parisi knew of the unauthorized use of SAMHSA funds,

if the revelation occurred after the false 269 form had already

been filed, it would shed little light on the crucial question of

whether Parisi knew the form to be false at the time of filing.

The evidence the government amassed as to Parisi's guilt

on count five clearly establishes that Parisi signed the 269 form,

and that the 269 form misrepresented that certain expenses were

properly charged to the SAMHSA grant. However, the evidence as to

whether Parisi at this point knew that the information he was

filing was materially incorrect -- that Tomah, Newell and Stevens

had not worked for Wonahkik in FY 2003 -- appears to be skimpy at

best. The time period in question was prior to Parisi's employment

with the Tribe, and we see no reason to believe that he knew,

within a few months of his arrival, where every tribal member had

worked in the previous fiscal year. Conversely, of course, the

inference of knowledge becomes increasingly pressing as Parisi

became more and more deeply involved with, and received warning

after warning about, Newell's on-going financial tomfoolery.

Perhaps one could conclude from the evidence presented

that it was possible that ParisI knew the 269 form to contain false

statements. But we do not see how a reasonable person could view

the evidence as establishing such knowledge beyond a reasonable

-31-
doubt. Accordingly, we find that the evidence was not sufficient

to convict Parisi under count 5.15

C. Counts 12-15

Parisi was convicted of counts 12-15, which assert that

Parisi filed fraudulent claims for reimbursement to SAMHSA

officials in the fiscal year ending on September 30, 2005, in

violation of 18 U.S.C. § 287.16 Parisi challenges his convictions

on these counts because he claims that the government failed to

prove that the forms at issue were material. They were not

material, Parisi claims, because one of them -- the form underlying

count 12 -- was returned to him "because it was not in a format in

which [HHS] was willing to review it," and because the government

did not pay the claims listed on the forms underlying counts 13-15.

The plain language of § 287 makes no mention of

materiality as an element of the offense. Parisi argues that we

should nevertheless read materiality into the statute, as the

Eighth and Fourth Circuits have done. See United States v. Adler,

15
Because we vacate the conviction, Parisi's additional contention
that the 269 form was not "material" because it was incomplete and
was not relied upon by agency officials is moot. It is in any case
without merit, for the reasons noted in section C, infra.
16
"Whoever makes or presents to any person or officer in the
civil, military, or naval service of the United States, or to any
department or agency thereof, any claim upon or against the United
States, or any department or agency thereof, knowing such claim to
be false, fictitious, or fraudulent, shall be imprisoned not more
than five years and shall be subject to a fine in the amount
provided in this title." 18 U.S.C. § 287.

-32-
623 F.2d 1287, 1291 n.5 (8th Cir. 1980); United States v. Snider,

502 F.2d 645, 652 n.12 (4th Cir. 1974). In contrast, the Fifth,

Ninth, Tenth and Second Circuits have held that § 287 does not

require proof of the materiality of the false statement. See

United States v. Upton, 91 F.3d 677, 685 (5th Cir. 1996); United

States v. Taylor, 66 F.3d 254, 255 (9th Cir. 1995); United States

v. Parsons, 967 F.2d 452, 455 (10th Cir. 1992); United States v.

Elkin, 731 F.2d 1005, 1009-10 (2d Cir. 1984), overruled on other

grounds by United States v. Ali, 68 F.3d 1468 (2d Cir. 1995).

Finally, the Third Circuit has split the difference and concluded

that materiality sometimes is, and sometimes is not, an element

under § 287. See United States v. Saybolt, 577 F.3d 195, 200 (3d

Cir. 2009).

This case does not require us to express a view as to

whether materiality is an element under 18 U.S.C. § 287. This is

because Parisi's claim cannot succeed either way. As we have noted

in other statutory contexts, a statement need not actually deceive

to qualify as "material." Rather, "materiality requires only that

the fraud in question have a natural tendency to influence, or be

capable of affecting or influencing, a government function. The

alleged concealment or misrepresentation need not have influenced

the actions of the Government agency, and the Government agents

need not have been actually deceived." United States v. Corsino,

812 F.2d 26, 30 (1st Cir. 1987) (citing United States v. Markham,

-33-
537 F.2d 187, 196 (5th Cir. 1976)); see also United States v.

Moran, 393 F.3d 1, 13 (1st Cir. 2004).17

It is thus clear that Parisi's claims would be unavailing

even were we to read materiality into § 287. The forms Parisi

submitted were expressly designed to cause the SAMHSA

administrators to pay on claims that were not authorized by the

terms of the SAMHSA grant. Although the 270 form at issue in count

twelve was returned to Parisi because it was improperly formatted,

it contained the substance of the relevant false claims, which

substance was re-submitted several days later in the correct

format.18 As our precedent on materiality makes clear, that SAMHSA

17
Perhaps one might wonder whether this understanding of
materiality -- taken from the context of § 1001 -- is appropriate
in the context of § 287. Parisi, however, is in no position to
raise this argument. Parisi's argument for reading materiality
into § 287 in the first place rests on the putative statutory
history of §§ 287 and 1001. He argues that § 1001 includes an
explicit reference to materiality because it was designed to
address false statements, which, unlike the false claims penalized
in § 287, was not a common law term of art that already implicitly
incorporated a materiality requirement. Therefore, § 287 does not
include a reference to materiality simply because -- according to
Parisi -- doing so would have been otiose. We express no view on
the veracity of this account of the distinction between §§ 287 and
1001, but note that if Parisi is correct, then it stands to reason
that materiality under § 1001 ought to be identical to that under
§ 287, as the former (allegedly) only makes explicit what is anyway
implicit in the latter.
18
The false claims at issue in counts 12-15 were requests for
reimbursement from SAMHSA for the salaries of the same three tribal
council members that were the subject of counts 3 and 5. None of
these council members worked for the Wonahkik program. Although it
is plausible that Parisi did not know of the fraudulent nature of
these claims with respect to the initial 269 form -- filed shortly
after he began working at the Tribe -- these forms were filed more

-34-
administrators were not ultimately deceived into paying out on the

fraudulent claims at issue in counts 12-15 does not bear on the

materiality of the fraudulent misrepresentations. Corsino, 812

F.2d at 30. For these reasons, the evidence was sufficient to show

that the misrepresentations contained on the forms underlying

counts 12-15 were "material."19

D. Counts 1, 8, 9, 11, 29, 30

Finally, Parisi attacks his conviction under counts 1, 8,

9, 11, 29 and 30 on the grounds that the government failed to prove

"the necessary criminal intent of acting willfully." The relevant

statutes are §§ 666(a)(1)(A) and 669; the former alleges that

than a year after he was hired. Parisi does not contend that he
did not know, at this point, that these individuals did not work
for Wonahkik and so were not eligible to have their salaries paid
by SAMHSA.
19
Our conclusion here means that there is no need to dwell on
Parisi's complaint (which Newell joins) that the district court
erred in failing to instruct the jury on materiality with respect
to counts 12-15 (the counts alleging violations of § 287). Even
assuming that materiality is an element under § 287, the failure to
instruct the jury on materiality is subject to harmless error
review. See Neder v. United States, 527 U.S. 1, 9 (1999) ("Unlike
such defects as the complete deprivation of counsel or trial before
a biased judge, an instruction that omits an element of the offense
does not necessarily render a criminal trial fundamentally unfair
or an unreliable vehicle for determining guilt or innocence.").
Harmless error review requires ascertaining "whether it appears
beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained." Id. at 15 (internal quotation
marks and citation omitted). Our conclusion entails that even if
the district court erred in not giving the requested materiality
instruction -- and we certainly do not say it did -- that error was
harmless as the evidence of materiality was more than sufficient to
support the convictions under this standard.

-35-
Parisi "intentionally misapplie[d]" property, whereas the latter

alleges that he "knowingly and willfully" embezzled, stole or

converted the assets of a health care benefit program. Parisi

insists that he had "no motive to disobey or disregard the law, as

he gained no benefit from the transfers."

Parisi's argument is that in order to obtain a conviction

under either of these statutes, the government needed to show that

he acted "willfully," meaning that the government had to show that

he acted with an illicit motive. See Bryan v. United States, 524

U.S. 184, 192 n.12 (1998) (explaining that the term "willful" in a

criminal statute "generally means an act done with a bad

purpose."). Parisi supports his contention by suggesting that when

allegedly fraudulent acts are not "themselves wrongful," then the

government must additionally show illicit motive. See Fed. Deposit

Ins. Corp. v. Elder Care Servs., 82 F.3d 524, 572 (1st Cir. 1996)

(noting that "[n]ormally, a party suggesting fraud or bad faith is

expected to point to the misconduct (lies, rigged account books,

self-dealing by a fiduciary) that reflects the bad faith or

constitutes the fraud," but acknowledging that "on some occasions

the inference of fraud or bad faith might be compelled by the

combination of motive and outcome.").

There appears to be scant law on the necessary mens rea

under either §§ 666(a)(1)(A) or 669, and we do not attempt here to

define the precise criminal intent required by these statutes. In

-36-
particular, we do not express any view as to whether the government

is required to prove a self-interested motive under either

§ 666(a)(1)(A) or § 669. It is sufficient for our purposes to note

that, even if Parisi's argument were correct, the evidence

presented was sufficient to support a finding of illicit motive.

After all, Parisi evidently did have a "motive to disobey or

disregard the law," and derived a very concrete benefit from doing

so: continued employment with the Tribe. Although not the direct

beneficiary of the financial maneuvers he executed on Newell's

behalf, Parisi benefitted indirectly by avoiding the fate of others

who protested and subsequently found themselves out of a job.

Thus, even if proof of an illicit motive or personal benefit was

required -- an issue we do not resolve today -- the existence of

such a motive or benefit was supportable from the facts. We

discern no error in the jury's verdicts on this score.

IV. Were the Pinkerton instructions misleading?

Both appellants contend that the district court erred in

twice giving the jury a Pinkerton instruction because doing so

could have misled the jury. When an appellant claims that a jury

instruction would "tend[] to confuse or mislead the jury on the

controlling issues," we review for abuse of discretion. United

States v. Silva, 554 F.3d 13, 21 (1st Cir. 2009) (quoting United

States v. Ranney, 298 F.3d 74, 79 (1st Cir. 2002) (internal

quotation marks omitted). In assessing a challenge to a trial

-37-
court's jury instructions, we must bear in mind that "[a] trial

judge has broad discretion in deciding how best to communicate

complicated legal rules to a lay jury." DeCaro v. Hasbro, Inc.,

580 F.3d 55, 63 (1st Cir. 2009). In addition, "[w]hen reviewing a

district court's instructions to the jury, we look at the charge as

a whole, not in isolated fragments." United States v. Taylor, 54

F.3d 967, 976 (1st Cir. 1995); United States v. García-Pastrana,

584 F.3d 351, 385 (1st Cir. 2009).

A Pinkerton instruction tells the jury that they may hold

a defendant liable for a criminal offense in which the defendant

did not personally participate if it was committed during the

course of and in furtherance of the conspiracy of which he was a

member. See United States v. Pinkerton, 328 U.S. 640, 645-48

(1946); United States v. Hansen, 434 F.3d 92, 103 (1st Cir. 2006).

The district court gave the jury a Pinkerton instruction once when

instructing on counts 29 and 30, and again when instructing on

counts 3, 7, 8, 9, 10 and 11. Both Newell and Parisi objected

before the court instructed the jury, and Parisi objected again

after the instructions were given.

Appellants argue that by giving the Pinkerton instruction

twice, the court created an undue risk that the jury would draw the

inference that a person who had committed the substantive offense

must have been a conspirator as well. See United States v.

Sánchez, 917 F.2d 607, 612 n.4 (1st Cir. 1990) (cautioning against

-38-
automatically providing a Pinkerton instruction in cases "where the

jury is being asked . . . to infer, on the basis of a series of

disparate criminal acts, that a conspiracy existed"). But see

United States v. Wester, 90 F.3d 592, 597 (1st Cir. 1996)

(rejecting challenge to Pinkerton instruction on grounds that in

some cases "some interplay between the jury's assessment of guilt

on the substantive counts and the conspiracy charge is both natural

and appropriate," and that "the fact that substantive crimes were

carried out by the defendants, following discussions between them,

may well make the fact of agreement more likely").

As the government notes, the two Pinkerton instructions

were not duplicative, but rather were addressed to two distinct

sets of offenses -- the misapplication of tribal funds in counts 29

and 30 and the misapplication of government and health care funds

in counts 3, 7, 8, 9, 10 and 11. Even if giving the instruction

twice created a risk that the jury would improperly infer the

existence of a conspiracy, there was a converse risk that failing

to adequately instruct the jury that vicarious liability was

available on these distinct sets of charges would itself have

misled the jury. (The appellants do not contend that Pinkerton

liability was in fact impermissible on either set of charges).

Moreover, it is worth bearing in mind that the appellants were

facing a thirty-count indictment, alleging violations of five

separate statutes in dozens of transactions occurring over the span

-39-
of approximately four years. The trial took eleven days, and the

jury instructions alone occupy approximately forty pages in the

trial transcript. Under these circumstances, it was well within

the court's discretion to decide whether providing the Pinkerton

instruction twice would serve to clarify or to confuse.

V. Were specific unanimity instructions required?

Many of the counts in the indictment -- specifically,

counts 2, 7, 8, 9, 11, 29 and 30 -- alleged multiple fraudulent

transactions. Each of these counts listed multiple instances of

the misapplication of funds occurring within discrete one-year

windows. The appellants now object that the structure of the

indictment was duplicitous and violated their right to a unanimous

verdict. See Fed. R. Crim. P. 31(a). The gist of the appellants'

complaint is that counts 2, 7, 8, 9, 11, 29 and 30 of the

indictment allowed the jury to vote to convict even though they may

have disagreed as to which specific acts of intentional

misapplication were proven beyond a reasonable doubt. Some of the

jurors could have thought, for instance, that the appellants had

intentionally misapplied funds on only a particular subset of

occasions, whereas other jurors could have thought that they had

misapplied funds on a different subset of occasions. Despite this

disagreement, the jurors could still have all agreed that the

government had proven that appellants had intentionally misapplied

at least some funds, and voted to convict on that basis. The

-40-
question is whether unanimity on that proposition would be

sufficient to sustain the convictions.

Normally, "[a] party's entitlement to a unanimity

instruction presents a question of law," meaning that "the district

court's answer to that question engenders de novo review." United

States v. Lee, 317 F.3d 26, 35 (1st Cir. 2003). However, in this

case, neither Newell nor Parisi raised the issue below, so we

review for plain error. United States v. Pagán-Santini, 451 F.3d

258, 267 (1st Cir. 2006); United States v. Puerta, 38 F.3d 34, 40-

41 (1st Cir. 1994). Plain error is established by showing not only

that error occurred, but that it was plain or obvious, violated

substantial rights, and "seriously affected the fairness,

integrity, or public reputation of judicial proceedings." United

States v. Pérez-Montañez, 202 F.3d 434, 442 (1st Cir. 2000)

(quoting United States v. Olano, 507 U.S. 725, 732 (1993)).

The characterization of the issue as one of jury

"unanimity" is in some respects misleading. No one disputes that

conviction requires unanimous agreement amongst the jurors. The

issue is rather what it is that they must be unanimous about. This

question is subtle and difficult, and raises two closely related

sets of issues. The first is: when is a disputed fact -- e.g.,

whether the crime occurred on a Monday or a Tuesday, with a knife

or a gun, against this or that victim -- one that the jury must

unanimously agree upon, and when is it merely dispensable detail?

-41-
And the second is: when is a defendant's conduct one violation of

a statute, and when is it many?

Although the basic issue raised in this portion of the

appeal concerns the second question -- potential duplicity in the

indictment -- the government devotes substantial energy to

resisting the appellants' argument on grounds that proof of a

specific transaction is not an element under the relevant statutes.

But, as we now explain, even if not always in the most perspicuous

manner, our cases have distinguished between unanimity as to a

crime's elements and unanimity as to a crime's instances.

A. Unanimity as to a crime's elements

The government points us toward United States v. Lee, 317

F.3d 26 (1st Cir. 2003). In Lee, the defendant was convicted under

18 U.S.C. § 1029(a)(3), which prohibited possession of "fifteen or

more . . . counterfeit or unauthorized access devices." Lee

claimed that the jury was required to agree on which fifteen

unauthorized credit cards he actually possessed. After considering

the statutory text, relevant legal traditions, the structure of the

law, its legislative history and implications for unfairness, see

Lee, 317 F.3d at 37, we, on de novo review, rejected the claim and

held that "the identity of the particular devices possessed by a

defendant is not an element" under 18 U.S.C. § 1029(a)(3). Id. at

40. We cautioned, however, that "[a]scertainment of the level at

-42-
which unanimity is required . . . tends to be offense-specific."

Id. at 37.

The government insists that Lee controls the outcome here

as well. If so, then the appellants' claims are doomed. If a

claim fails under de novo review, then it must of course also fail

under plain error review. So the question is whether Lee governs.

It does not.

The government fails to appreciate that the appellants

are not contending that the jury had to be given a specific

unanimity instruction because proof of a specific transaction is an

element of § 666(a)(1)(A), i.e., that the government must in every

prosecution under § 666(a)(1)(A) show a single, unambiguous

qualifying transaction. What the appellants are claiming is rather

that the indictment brought against them bundled multiple discrete

violations of the statute under single counts, meaning that, in the

absence of a specific unanimity instruction, it is unclear which

(if any) of the referenced crimes commanded the jury's unanimous

assent. This claim is fundamentally not about the "elements" of

§ 666(a)(1)(A); it is about the structure of the indictment. See

United States v. Holley, 942 F.2d 916, 927 (5th Cir. 1991)

(distinguishing alternative mentes reae for a single killing from

"the situation where a single count as submitted to the jury

-43-
embraces two or more separate offenses, though each be a violation

of the same statute").20

This latter issue was not broached in Lee. The statute

at issue in Lee, 18 U.S.C. § 1029(a)(3), defined the crime in terms

of possession of "fifteen or more" unauthorized credit cards. The

text of the statute thus supported our finding that the statute did

not consist of "fifteen acts of possessing an unauthorized credit

card, but, rather, a single act of possession of fifteen such

devices." Lee, 317 F.3d at 39-40. As we noted, the starting point

of the analysis was the text of the statute, and the statute in

that case made it reasonably clear that "Congress's emphasis was

not on the identity of the actual items . . . but, rather, on the

possession thereof." Id. at 38.

Because § 1029(a)(3) defined an offense in terms of

possession of "fifteen or more" unauthorized credit cards, it was

clear that even if some of the jurors thought that Lee possessed

this pile of cards while other jurors thought he possessed that

pile, either way Lee could have committed no more, and no less,

than a single violation of § 1029(a)(3). The same cannot be said

of the indictment brought against Newell and Parisi.

20
The other material statute in the challenged counts is § 669.
Oddly, however, the parties focus their discussion exclusively on
§ 666(a)(1)(A). Our analysis, accordingly, is also focused
exclusively on § 666(a)(1)(A).

-44-
 The government claims that the elements of an offense

under § 666 are:

1) the defendant was an agent of an Indian
tribal government; 2) who embezzled, stole,
fraudulently obtained or willingly converted
property worth at least $5000 of tribal
property [sic]; and 3) did so during a time
when the tribal government received more than
$10,000 in any one year from a qualifying
federal assistance program.

Counts 2, 7, 8, 9, 11, 29 and 30 of the indictment each

contained descriptions of numerous transactions. With a few

exceptions, each of these transactions would seem, on its face, to

be enough to make out an independent violation of § 666(a)(1)(A).

For instance, count two claimed that Newell was "an agent" of the

Tribe, that the tribe "received benefits in excess of $10,000

through contract, grants, and cooperative agreements with U.S.

Departments and agencies," and that he "intentionally misapplied"

the following funds: (1) approximately $50,130 from the BIA Housing

Improvement Program, and (2) approximately $44,000 from the Indian

Township Housing Authority. In light of the government's

characterization of the elements of § 666(a)(1)(A), it appears that

proof of either (1) or (2) would have been sufficient to make out

a complete violation. It thus appears that the appellants have a

point when they complain that the challenged counts presented "two

or more distinct violations of the same statute . . . lumped

together in a single count," an allegation that the government, for

its part, does not deny.

-45-
 But if it is true that, for instance, misapplying $50,130

in BIA funds and misapplying $44,000 of Indian Township Housing

Authority funds constitute discrete violations of the statute, then

count two did not allege two different ways of committing one and

the same crime, as in Lee, but rather alleged two entirely distinct

crimes. Under these circumstances, an undifferentiated guilty

verdict on count two would leave it entirely unclear whether the

jurors unanimously agreed (a) that Newell had misapplied the

$50,130 in BIA funds; (b) that he had misapplied the $44,000 in

Indian Township Housing Authority funds; (c) that he had misapplied

both; or (d) that he had misapplied either the BIA or the Housing

Authority funds, although they were not in agreement as to which.

In short, if a specific unanimity instruction was required, it was

not because proof of which specific funds were misapplied is an

"element" under § 666(a)(1)(A), but because this indictment was

duplicitous in consolidating multiple complete offenses under

single counts. Lee did not address this issue, and does not govern

this case.

The government has insisted in this appeal that the

bundled allegations merely specify "alternate means of committing

a crime," and therefore no specific unanimity instruction was

required. As we have noted, it is true that a jury does not need

to agree upon "a single means of commission" of a crime. See Schad

v. Arizona, 501 U.S. 624, 631 (1991); see also Fed. R. Crim. P.

-46-
7(c) ("A count may allege that the means by which the defendant

committed the offense are unknown or that the defendant committed

it by one or more specified means."). However, it does not follow

from the fact that unanimity is not required with respect to

alternative means of committing one and the same criminal act that

unanimity is not required with respect to multiple instances of the

same type of criminal act.21

B. Unanimity as to a crime's instances

The transactions detailed in counts 2, 7, 8, 9, 11, 29

and 30 occurred on various dates and involved misapplications from

various sources. Count two, for instance, merely specifies that at

some point between October 1, 2002 and September 30, 2003, Newell

misapplied some funds from the BIA and also some other funds from

21
To conclude otherwise would be to conflate two distinct senses
of "alternate means of committing a crime." The distinction is
easily illustrated. Suppose, for instance, that there is some
doubt as to whether A robbed B with a knife or a pistol. The
government may obtain a conviction for armed robbery even if some
of the jurors believe A used a knife and others believe he used a
gun. But one thing the government certainly could not do is to
charge A with two armed robberies -- once with the knife, and once
with the gun. The appellants' complaint in this case raises the
latter concern, but the government's response addresses the former.

Indeed, were the facts sufficient to support two distinct armed
robberies -- if, say, A robbed B with a knife and then, feeling
peckish, returned at a later point and robbed B again with a pistol
-- the jury would be required to unanimously agree which of the
crimes the government had proven. The point of specific unanimity
instructions is, presumably, to preserve this right to a unanimous
verdict regardless of whether the government decides to charge the
two armed robberies in separate counts or to instead fold them into
a single duplicitous one.

-47-
the Indian Township Housing Authority. The question now is how

many statutory violations the alleged conduct states.

We cannot evade this question because the Supreme Court

has indicated, on at least two separate occasions, that the jury is

required to unanimously agree as to which instances of a crime the

defendant committed. In Schad, the Supreme Court rejected a

challenge to Arizona's murder statute, which permitted conviction

on a theory of either premeditation or felony murder. In his

concurrence, Justice Scalia concurred with the plurality largely on

grounds of legal tradition, and disavowed the plurality's

explanation for why "it is permissible to combine in one count

killing in the course of robbery and killing by premeditation."

Schad, 501 U.S. at 651 (Scalia, J., concurring). After all,

despite their "moral equivalence," Justice Scalia noted that "[w]e

would not permit . . . an indictment charging that the defendant

assaulted either X on Tuesday or Y on Wednesday."22

Later, in Richardson v. United States, 526 U.S. 813, 815

(1999), the Court held that a jury must agree unanimously as to the

individual violations making up the "series of violations" element

under the federal continuing criminal enterprise statute ("CCE"),

21 U.S.C. § 848(a). The majority specifically cited Justice

Scalia's warning in Schad as authority for the proposition that

22
Schad was decided by a plurality. Hence, Justice Scalia's vote
was necessary to the outcome.

-48-
"the Constitution itself limits a State's power to define crimes in

ways that would permit juries to convict while disagreeing about

means, at least where that definition risks serious unfairness and

lacks support in history or tradition." Id. at 820.

We have described the type of indictment singled out by

Justice Scalia in Schad, and subsequently emphasized in Richardson,

as duplicitous -- that is, as one that "join[s] in a single count

. . . two or more distinct and separate offenses." United States

v. Canas, 595 F.2d 73, 78 (1st Cir. 1979). We must, therefore, now

turn our attention squarely to the question of whether the

transactions bundled under counts 2, 7, 8, 9, 11, 29 and 30 were

duplicitous -- that is, whether they described distinct violations

of §§ 666(a)(1)(A) and 669. If they did, then the failure to give

specific unanimity instructions was error. If not, then not.

Determining whether the challenged counts were

duplicitous is no easy matter.23 In some cases the standard for

individuating crimes is obvious -- we count murders, for instance,

by counting bodies. But in other cases, determining how many

crimes were committed is much less clear. See, e.g., United States

23
We have not always needed to engage in extended analysis of the
allowable unit of prosecution under plain error. For instance, in
United States v. Leahy, 473 F.3d 401, 409-10 (1st Cir. 2007), we
were able to sidestep analysis of this thorny question because
First Circuit precedent had already established the unit of
prosecution under the relevant statute. This is not the case here;
the unit of prosecution under § 666(a)(1)(A) appears not to have
been previously considered by this court.

-49-
v. Rivera Ramos, 856 F.2d 420, 422-23 (1st Cir. 1988). The text of

§ 666 offers little guidance. Section 666(a)(1)(A) refers to

"property that is valued at $5000 or more and is owned by, or is

under the care, custody or control of" qualifying institutions.

Section 669 refers to "any of the moneys, funds, securities,

premiums, credits, property, or other assets of a health care

benefits program." Neither clearly specifies the baseline unit of

prosecution. Although the statute is conditioned upon the

organization's receipt of over $10,000 in benefits from a Federal

program "in any one year period," § 666(b), this is consistent

with either (a) treating all qualifying transactions within a one-

year period as aggregated together to state one offense under § 666

(a)(1)(A), or (b) treating each qualifying transaction as an

independent offense. The text of the statute thus fails to specify

the allowable unit of prosecution.

The legislative history of § 666 indicates that it was

enacted as part of the Comprehensive Crime Bill of 1984, and that

it was

designed to create new offenses to augment the
ability of the United States to vindicate
significant acts of theft, fraud, and bribery
involving Federal monies which are disbursed
to private organizations or State and local
governments pursuant to a Federal program.

United States v. Cicco, 938 F.2d 441, 444 (3d Cir. 1991) (citing S.

Rep. No. 98-225, at 369 (1983), reprinted in 1984 U.S.C.C.A.N.

-50-
3182, 3510). This history does not illuminate Congress's preferred

unit of prosecution.

There is a "surprising paucity of federal case law

identifying the unit of prosecution for § 666." United States v.

Nystrom, No. 07-30100, 2008 WL 4833984, at *10 (D.S.D. Nov. 4,

2008). We have previously held that the government may aggregate

transactions occurring within a one-year time period in order to

meet the $5000 jurisdictional minimum of § 666(a)(1)(A). United

States v. Cruzado-Laureano, 404 F.3d 470, 484 (1st Cir. 2005).

Cruzado-Laureano relied on a case from the Sixth Circuit, United

States v. Sanderson, 966 F.2d 184, 189 (6th Cir. 1992), which

concluded that aggregation to meet the jurisdictional minimum is

permissible when the transactions are part of a single scheme. See

also United States v. Hines, 541 F.3d 833, 837 (8th Cir. 2008)

(interpreting aggregation of transactions for purpose of § 666

generally); United States v. Webb, 691 F. Supp. 1164, 1168 (N.D.

Ill. 1988) ("[A]ggregation is permissible where the thefts are part

of a single plan.").

These cases are not dispositive of the present

controversy. These cases were concerned with the propriety of

aggregation when the transactions involved sums which fell below

the jurisdictional minimum and hence did not make out independent

violations of § 666. However, one of the rationales for allowing

aggregation under such circumstances is to ensure that poorly

-51-
motivated officials do not evade liability under § 666 simply by

stealing less than $5000 at a time. See Webb, 691 F. Supp. at

1168; Sanderson, 966 F.2d at 189. Worries about opportunistic

evasion of liability do not apply to transactions that involve sums

larger than the statutory minimum. Since most of the bundled

transactions in this case involved sums greater than $5000, it is

not clear whether this line of precedent would support the

aggregation that occurred in this case. But see United States v.

Urlacher, 784 F. Supp. 61, 64 (W.D.N.Y. 1992) (holding that the

unit of prosecution under § 666(a)(1)(A) is "'$5,000 or more,' from

whatever source, in any one year period in which the government or

agency at issue receives more than $10,000 in Federal aid.").

Fortunately, we are not completely without compass. We

have previously given more general consideration to the

individuation of criminal transactions. See United States v.

Verrecchia, 196 F.3d 294, 297-301 (1st Cir. 1999). In Verrecchia,

an undercover sting caught the defendant attempting to fence stolen

firearms. When he was arrested, the police discovered weapons in

both his truck and in the adjacent barn. Verrecchia was

subsequently charged with (among other things) one count related to

the two weapons found in the truck and another for the twenty-one

weapons found in the barn, under the auspices of the federal felon-

in-possession statute, 18 U.S.C. § 922(g)(1). Id. at 296.

Verrecchia contended that the counts were duplicitous insofar as

-52-
they each alleged multiple crimes, and that it was plain error not

to instruct the jury that they had to agree on which gun or guns he

was shown to have possessed. Id. at 297.

We rejected the claim under plain error review, and held

that "[c]ontrary to Verrecchia's contention, . . . the government

could not have properly charged him with twenty-three separate

crimes for the twenty-three different guns he allegedly possessed."

Id. at 298. We relied in part on the Supreme Court's decision in

Bell v. United States, 349 U.S. 81 (1955), and in part on the

overwhelming consensus from other courts of appeals that "the

simultaneous possession of multiple firearms . . . constitutes only

one crime." Verrecchia, 196 F.3d at 297.

In Bell, the Supreme Court emphasized the "presupposition

of our law to resolve doubts in the enforcement of a penal code

against the imposition of harsher punishment." Bell, 349 U.S. at

83. Therefore, "if Congress does not fix the punishment for a

federal offense clearly and without ambiguity, doubt will be

resolved against turning a single transaction into multiple

offenses." Id. at 84. Accordingly, after finding that the

language of § 922(g)(1) (referring to "any firearm") was, like the

language of the Mann Act at issue in Bell (18 U.S.C. § 2421,

referring to "any woman or girl"), ambiguous as to the allowable

unit of prosecution, and finding no indication of Congress's clear

intent "to treat each possession of a firearm as a separate

-53-
violation," we applied Bell in holding that the government properly

charged him with two offenses rather than twenty-three -- one for

the two guns found in the truck and the other for the twenty-one

guns found in the shed. Verrecchia, 196 F.3d 298.

The government cites Verrecchia for the proposition that

"[w]here separate instances of the same act are grouped in a single

count . . . there is no duplicity." This is a serious

misunderstanding of Verrecchia. After all, on this view, the

indictment in Verrecchia should have contained only one count,

encompassing all twenty-three guns. But we quite clearly held that

"the indictment here correctly grouped the firearms into counts

based on the place of possession." Id. at 298. Moreover, Bell, on

which we relied, did not say that every instance of the same type

of criminal act could be lumped together under one count. It said

that, for the sake of lenity, a single transaction should not be

split up into multiple offenses. The focus on the transaction as

the unit of prosecution explains why there were two counts in

Verrecchia, rather than either one or twenty-three: possession of

the guns in the truck counted as one transaction, and possession of

the guns in the shed counted as another. Thus, Verrecchia

permitted bundling of guns by transaction, not simply qua instances

of the same type of criminal act. See also United States v.

Waldman, 579 F.2d 649, 654 (1st Cir. 1978) (identifying appropriate

unit of prosecution under 15 U.S.C. § 77(q)a to be "separate

-54-
transactions accompanied by the use of the mails). But see United

States v. Campbell, No. 90-1130, 1990 WL 151318, at *1-2 (1st Cir.

July 19, 1990) (treating unit of prosecution under 26 U.S.C. § 5861

(d) as possession of the "individual firearm").24

But if, as we held in Verrecchia, the fact that some guns

are stored in a shed and others in a truck parked next to it is

sufficient to constitute two distinct transactions, then there is

a compelling claim that misapplying funds from agency A in March

and misapplying funds from agency B in July is also sufficient to

constitute two distinct transactions. Thus, far from supporting

the government's position, Verrecchia appears to seriously

undermine it. In light of Verrecchia, insofar as the conduct

aggregated under counts 2, 7, 8, 9, 11, 29 and 30 involved distinct

transactions, the counts must be deemed to bundle within their

ambit multiple distinct violations of § 666(a)(1)(A).

There is thus reason to believe that the indictment

brought against Newell and Parisi was constitutionally infirm. For

24
Focus on the transaction as the unit of prosecution, at least
when Congress has left the issue open, is consistent with how we
have treated claims of multiplicity in an indictment. Multiplicity
is the converse of duplicity: it alleges that the government seeks
multiple punishments for the same offense via an impermissibly
repetitive indictment. In addressing multiplicity challenges, we
have noted that "an inquiring court must determine whether the
facts undergirding each count can be treated as a distinct unit of
prosecution." United States v. Pires, No. 10-1062 (1st Cir.
April 6, 2011) at *12. In applying this test, we focus on whether
there is evidence that might establish that the conduct in question
constitutes "separate and distinct transactions." Id.

-55-
the only sense in which it is true that a duplicitous count merely

specifies "alternate means of committing" some crime is in the

sense in which it is true that an indictment that alleges that A

killed B on Monday, C on Tuesday and D on Wednesday specifies

"alternate means" of committing a single instance of the crime of

murder. The Supreme Court has made quite clear that this form of

indictment violates a defendant's right to a unanimous verdict.

See Richardson, 526 U.S. at 820; Schad, 501 U.S. at 651 (Scalia,

J., concurring).

Other circuits have come to similar conclusions. In

United States v. Holley, the Fifth Circuit held that an indictment

that charged counts of perjury on the basis of multiple statements

required a specific unanimity instruction, as the "government was

required to prove dissimilar facts to show the knowing falsity of

each statement." Holley, 942 F.2d at 928-29. The Holley court

specifically relied on Justice Scalia's warning against duplicitous

indictments in Schad. Id. at 927; see also United States v. Bins,

331 F.2d 390, 393 (5th Cir. 1964) (noting that a two-count

indictment, each count of which alleged multiple acts of uttering

and publishing false documents in violation of 18 U.S.C. § 1010,

was duplicitous, as "[t]he filing of each false document would

constitute a crime, and each should be alleged in a separate and

distinct count of the indictment."). The Third Circuit has held

that the unanimity requirement extends to an indictment that

-56-
includes "several transactions or occurrences, any of which could

constitute one of the acts proscribed by the charged statutes."

United States v. Beros, 833 F.2d 455, 460-61 (3d Cir. 1987). The

Beros court noted that "just as the sixth amendment requires jury

unanimity in federal criminal cases on each delineated offense that

it finds a defendant culpable . . . it must also require unanimity

regarding the specific act or acts which constitutes that offense.

Absent such certainty, the unanimity requirement would provide too

little protection in too many instances." Id. at 461. The Seventh

Circuit came to the same conclusion in a case very similar to

Holley. See United States v. Fawley, 137 F.3d 458, 471 (7th Cir.

1998). But see United States v. Margiotta, 646 F.2d 729, 733 (2d

Cir. 1981) (holding that the "policy" considerations behind the

unanimity requirement suggest "that a single count of an indictment

should not be found impermissibly duplicitous whenever it contains

several allegations that could have been stated as separate

offenses . . . but only when the failure to do so risks unfairness

to the defendant.").

The risks of serious unfairness presented by a

duplicitous indictment are apparent. In conditions where jurors

disagree among themselves as to just which offenses the evidence

supports, the defendant may nevertheless wind up convicted because

the jurors agree that the evidence showed that he had committed an

offense, even if it was ambiguous as to which one. See United

-57-
States v. Valerio, 48 F.3d 58, 63 (1st Cir. 1995). In other words,

although a jury may return a guilty verdict even if the jurors

disagree about how a specific crime was committed, this is quite

different from allowing a jury to return a guilty verdict when they

disagree even as to which crime or crimes were committed. The

Supreme Court emphasized just this kind of danger in Richardson,

warning that the lack of a unanimity instruction could cover up

"wide disagreement among the jurors about just what the defendant

did, or did not, do." Richardson, 526 U.S. at 819; see also Beros,

833 F.2d at 460 (observing that a general unanimity instruction is

likely to be inadequate "where the complexity of the case, or other

factors, creates the potential that the jury will be confused.").

Secondly, in criminal cases, the government is still

ostensibly required to prove the defendant's guilt beyond a

reasonable doubt. See United States v. Ayewoh, 627 F.3d 914, 930

(1st Cir. 2010) (Thompson, J., dissenting). In aggregating

multiple instances of the same crime, the prosecution may bundle

together alleged offenses that are strongly supported by the

evidence with ones that are only moderately, or even weakly,

supported by the evidence. If a jury does not specifically

indicate that it has assented to each alleged offense, then by

assenting to the bundle it has done no more than indicate its

agreement with the proposition that the defendant is guilty of

some, though perhaps not all, of the charged conduct. (And it may

-58-
not have even indicated that much, if the jurors did not agree

which offense was committed -- which, again, we simply do not know

without an specific jury instruction). The consequences of

conviction on that count may potentially lead to punishment over

and above what the government's proof actually sustains. This is

a danger we have stressed before, albeit in the context of

unanimity as to a crime's elements rather than duplicity per se.

See Lee, 317 F.3d at 36 (noting that "the unanimity requirement

. . . helps to ensure that no defendant will be convicted unless

the government has carried its burden of proving guilt beyond a

reasonable doubt," and that "leaving jurors free to convict despite

disagreements about critical facts will imperil the integrity of

the reasonable doubt standard.").

For these reasons, we hold that charges 2, 7, 8, 9, 11,

29 and 30 were duplicitous, and that the failure to provide a

specific unanimity instruction was error.

C. If there was error, was it plain?

Nevertheless, despite our concern about the form of the

indictment in this case, we cannot lose sight of the fact that

these issues were not raised below and so are before us on plain

error review. As we have noted on an earlier occasion, the hurdle

of plain error "nowhere looms larger than in the context of alleged

instructional errors." United States v. Paniagua-Ramos, 251 F.3d

242, 246 (1st Cir. 2001).

-59-
 Although we have concluded that the failure to provide a

specific unanimity instruction was error and violated the

appellants' right to a unanimous jury verdict, this alone is not

sufficient to satisfy the rigors of plain error review. To prevail

under plain error requires showing, among other things, that any

error of law was plain -- that is, that it was "obvious and clear

under current law." Smith v. Kmart Corp., 177 F.3d 19, 26 (1st

Cir. 1999).

We cannot say that the error here met that standard. We

note that this court has previously rejected a claim substantially

similar to that brought by the appellants, albeit with fairly

minimal analysis. See Pagán-Santini, 451 F.3d at 267. Moreover,

as we noted in Pagán-Santini, "the law is less clear than it might

be as to when juror unanimity is required in the face of

alternative paths to a verdict." Id.; see also United States v.

Marino, 277 F.3d 11, 32 (1st Cir. 2002) (declining to find plain

error in trial court's failure to give specific unanimity

instruction with respect to charge of conspiracy to murder thirteen

individuals on grounds of the "unsettled state of the law.") It

appears not to have gotten any clearer since then.

In light of the presence of some, even if not exactly

overwhelming, countervailing authority, and because of the lack of

doctrinal clarity in this area -- the relevant unit of prosecution

under § 666(a)(1)(A), the crucial issue underpinning the

-60-
appellants' claim, appears not to have been hitherto addressed by

this circuit -- we cannot say with confidence that any error here

was plain.

We emphasize, however, that because we hold that the

indictment was impermissibly duplicitous, plain error review may

prove to be cold comfort for similarly defective charging

instruments going forward.

VI. Should Newell have been sentenced under § 450d?

Newell claims that the district court erred in sentencing

him pursuant to 18 U.S.C. §§ 666 and 669 rather than 25 U.S.C.

§ 450d, despite the fact that he was charged with, and convicted

of, violating only the former statutes. Section 666 criminalizes

the intentional misapplication of funds by an official of an

organization receiving over $10,000 per year in federal funds, and

carries a maximum sentence of ten years; § 669 criminalizes

intentional misapplication of the assets of "health care benefit

program," again setting a statutory cap of ten years imprisonment.

By contrast, § 450d imposes a maximum sentence of two years for

tribal officers who are convicted of misapplying funds received

under the Indian Self-Determination and Education Assistance Act.

Section 450d is, Newell insists, specifically directed to Indian

officials unlike the general purpose §§ 666 and 669 statutes.

Newell argues that the rule of lenity, as well as the principle of

statutory construction favoring specific statutes over general

-61-
statutes, require that he be sentenced under § 450d,

notwithstanding that one is usually sentenced under the statute

that one is accused of violating.

"[Q]uestions of statutory interpretation that bear on

sentencing" engender de novo review. United States v. Vidal-

Reyes, 562 F.3d 43, 48 (1st Cir. 2009).

In support of his position, Newell cites the dissenting

opinion in United States v. Largo, 775 F.2d 1099 (10th Cir. 1985)

(McKay, J., dissenting). In Largo, the majority upheld the

defendant's sentence under 18 U.S.C. § 641 for misapplying federal

funds, rejecting the argument that the defendant should have been

sentenced under § 450d. Id. at 1102. The dissenting judge

disagreed, explaining that, because § 450d specifically applied to

tribal officers and carried a lighter maximum sentence, remand for

resentencing under 25 U.S.C. § 450d was required. Id.

Newell's argument is not persuasive. The statute under

which Newell was charged explicitly applies to tribal officers,

undermining Newell's contention that Congress intended prosecution

of tribal officers to be governed exclusively by 25 U.S.C. § 450d.

See 18 U.S.C. § 666(a)(1) (referring specifically to "agent[s] of

. . . Indian tribal government."). Moreover, Newell's proposed

application of the rule of lenity is questionable. The rule of

lenity, which favors narrow construction of ambiguous criminal

statutes, is of little import in choosing between the application

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of overlapping criminal statutes. In any case, absent a

discriminatory motive on the part of prosecutors, "what charge to

file . . . generally rests entirely in the prosecutor's

discretion." United States v. Bucci, 582 F.3d 108, 113 (1st Cir.

2009) (internal citations and alterations omitted). Consequently,

we discern no error and reject Newell's request for resentencing

under 25 U.S.C. § 450d.

VII. Calculation of the restitution order

Parisi objects to the restitution order of approximately

$1.6 million that was entered against him. He contends that the

restitution order should be remanded to the district court to

correct a multitude of alleged errors. We address Parisi's

contentions one by one. As is well-established, "[w]e review

restitution orders for abuse of discretion and the subsidiary

findings of fact for clear error. If the appellant's challenge is

based on a legal conclusion, we review that conclusion de novo.

Where the defendant has failed to object below . . . we review only

for plain error." United States v. Antonakopoulos, 399 F.3d 68,

83-84 (1st Cir. 2005) (citation omitted).

A. Who were the victims?

Parisi argues that "to the extent there were any victims,

they were the [tribal] programs which did not have use of the

funds." The federal agencies to whom Parisi is required to make

restitution are not "victims" of his conduct, he claims, because

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even if "the federal government's funds were not utilized as

intended, the federal government turned over the right to possess

those funds when it transferred the funds to" the Tribe.

The restitution order is governed by the Mandatory Victim

Restitution Act, codified at 18 U.S.C. § 3663. As it happens, the

statute includes a definition of "victim": "a person directly and

proximately harmed as a result of the commission of an offense for

which restitution may be ordered including, in the case of an

offense that involves as an element a scheme, conspiracy, or

pattern of criminal activity, any person directly harmed by the

defendant's criminal conduct in the course of the scheme,

conspiracy, or pattern." 18 U.S.C. § 3663(a)(2).

We have noted, as Parisi concedes, that governmental

entities may, "without dispute," be considered victims under the

MVRA. United States v. Janosko, No. 10-1046, 2011 WL 1366436, at

*1 (1st Cir. Apr. 12, 2011). What, then, is the basis of Parisi's

claim that the agencies were not victims of his conduct? The

closest he comes to pressing the point is his assertion, noted

above, that the agencies lost any right to possess the relevant

funds once they were granted to the Tribe. But this contention

misses the point entirely. If the federal agencies were harmed, it

was not by losing possession of the funds -- these were, after all,

grants -- but rather by not having the funds go to the designated

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programs.25 For Parisi to have so much as a shadow of a claim that

the federal agencies were not his victims, he would have to show

why that kind of frustrated expectation is not a cognizable harm

under the MVRA.26 But he nowhere makes any such allegation. We

therefore consider the claim waived, and do not address it.

Parisi spends a good deal of his discussion of

restitution claiming that a restitution order would work a

"fundamental unfairness." Parisi claims that misuse of federal

grant money was standard practice at the Tribe long before he

arrived on the scene, and that the tribal council was well aware of

this fact. Parisi claims that the tribal council acknowledged, in

a May 2004 meeting, both that they were seriously overspending

their budget and that federal SAMHSA grant money was being siphoned

25
The legislative history of § 666 makes this point clear, as
§ 666 was designed to cover the situation in which "even though
title to the monies may have passed, the Federal Government clearly
retains a strong interest in assuring the integrity of such program
funds." Cicco, 938 F.2d at 445 (quoting S. Rep. No. 225, at 369
(1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3510).
26
This is consistent with United States v. Cornier-Ortiz, 361 F.3d
29, 41-42 (1st Cir. 2004), in which we vacated a restitution order
requiring the defendant, who had been convicted under
§ 666(a)(1)(A), to compensate HUD for intentionally misapplied
funds. There, we emphasized that even though the defendant had
intentionally misapplied the funds, the work that the funds were
meant to pay for had actually been completed, a fact pointed out by
the government's own witness. Id. at 42. In light of the lack of
evidence as to any actual loss, ordering restitution under these
circumstances would, we found, "be an unfair windfall to HUD." Id.
In this case, however, although the misapplied funds were arguably
used for the benefit of the Tribe, they were used in contravention
of their specified purposes.

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off to pay their own salaries. In short, Parisi's claim is that

the tribal council was entirely aware of and complicit in Newell's

financial shenanigans, and that he should not be made to compensate

the Tribe for the financial consequences of "decisions of the

tribal political leadership, including the governor and tribal

council members," particularly when he, as a tribal outsider, had

no say in making these decisions.

This is an argument about whether or not what he did

ought to be considered a crime, or perhaps whether it is fair to

punish him while not punishing the other allegedly complicit

parties. It does not appear to be an argument about whether there

was error in calculating the restitution order. Parisi had an

opportunity to present this argument to a jury of his peers. We

will not reopen the matter now.

B. How harmful was it?

Parisi next challenges the inclusion of specific amounts

in the restitution order. Parisi disputes the following five

amounts: (1) $129,044 relating to the SAMHSA funds at issue in

counts three and five; (2) $33,000 spent on a Racino referendum

effort, as well as other transfers from the health center's budget

over which he had no control; (3) $15,900 of housing authority

funds; and (4) a $30,000 DOJ COPS grant.27

27
In his opening brief, Parisi contested the inclusion of $229,000
from count eleven, claiming that he had been acquitted on that
count. The government pointed out that Parisi was in fact

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 Before we address these contentions, however, we must

first determine whether these claims were preserved. The

government claims that Parisi did not properly object to some, and

possibly any, of the specified amounts at sentencing. The

government claims that Parisi only objected at sentencing to (3),

the Racino expenditures, and that it was raised only with respect

to the guidelines calculation rather than the size of the

restitution order itself. Paragraphs 71-72 of the PSR detailed the

use of health center funds to pay for the Racino effort. Parisi

objected to paragraph 71 on the ground that he had no authority to

initiate or stop the use of the $33,000 for the Racino effort, and

he repeated this contention at the sentencing hearing. The

government's position appears to be that although Parisi objected

to the inclusion of the Racino funds, he did not object to the

"amount" imposed.

We do not know what to make of this contention. Parisi's

claim was that the Racino funds should not have been included at

all, from which it follows that in his view the correct amount was

zero. Moreover, the government's contention that "[t]he sentencing

transcript reveals only one reference to any of the four" disputed

amounts is belied by the record. Parisi's objections to the PSR's

inclusion of the $129,044 in SAMHSA funds can be found on pages 8-

convicted on count eleven. Parisi conceded the point in his reply
brief, but then substituted a challenge to the $30,000 COPS grant
instead.

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10 of the sentencing transcript. His objections to the DOJ COPS

grant can be found on pages 15-16. The discussion of Parisi's

involvement with transfers from the Housing Authority, although

more elliptical, can be found on page 8. The objections were

preserved.

1. $129,044 of SAMHSA funds

Parisi first contests the inclusion of the $129,044

deriving from the misapplication of SAMHSA funds used to pay ghost

employee salaries in the early part of 2004. Parisi argues that he

was not the cause of this loss under the standard announced in

United States v. Vaknin, 112 F.3d 579, 589 (1st Cir. 1997).

In Vaknin, we held that a "modified but for standard of

causation is appropriate for restitution under the [Victim and

Witness Protection Act]," meaning that "the government must show

not only that a particular loss would not have occurred but for the

conduct underlying the offense of conviction, but also that the

causal nexus between the conduct and the loss is not too attenuated

(either factually or temporally)." Id. at 589-90. We cautioned

that "what constitutes sufficient causation can only be determined

case by case, in a fact-specific probe." Id.28

28
Vaknin interpreted the predecessor to the MVRA, the Victim and
Witness Protection Act ("VWPA"). However, we have noted that "the
causation language of the MVRA is the same as that in the VWPA,
making it appropriate for us to turn to Vaknin for guidance" in
interpreting the MVRA. United States v. Cutter, 313 F.3d 1, 7 (1st
Cir. 2002). There is a further wrinkle, however, insofar as the
VWPA was amended after Vaknin to clarify that restitution may be

-68-
 Parisi was acquitted of count three, which alleged the

actual misapplication, but was convicted of count five, which

alleged filing false statements with HHS relating to the misuse of

the SAMHSA funds.29 Although the timing is not entirely clear, it

appears that the funds were disbursed no later than May 2004, i.e.,

before the falsified 269 forms were filed with HHS. The form

therefore could not have been a "but for" cause in causing HHS to

disburse the funds. See id. at 589 ("Restitution should not be

ordered in respect to a loss which would have occurred regardless

of the defendant's conduct."). This sum therefore should not have

been included under Vaknin.30

ordered for harms caused not just by a defendant personally, but
also by his or her co-conspirators as well, at least so long as
those harms were "reasonably foreseeable." See United States v.
Collins, 209 F.3d 1, 4 (1st Cir. 1999). Similar language is
contained in the MVRA. See 18 U.S.C. § 3663(a)(2). Nevertheless,
even if the eligible sources of harm are more numerous now than
they were under Vaknin, this is a distinct issue from what it takes
to count as having caused the harm, on which Vaknin remains
authoritative.
29
As noted above, we vacate Parisi's conviction on this count on
grounds of insufficient evidence that he knew the forms to be
false.
30
To be clear, we do not base our conclusion here on our holding
that the evidence was insufficient to convict Parisi for knowingly
making false statements to HHS. See United States v. Watts, 519
U.S. 148, 156 (1997) (noting, in a pre-Booker Guidelines case, that
"application of the preponderance standard at sentencing generally
satisfies due process.") Our conclusion is based on First Circuit
precedent as to which harms are compensable under the MVRA.

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 2. $33,000 Racino effort and Health Center transfers

Parisi also contests the inclusion of $33,000 used by the

tribal government to pay for expenses stemming from an effort to

get a referendum question on the November 2007 ballot asking for

voter approval of a Racino. Less specifically, he challenges the

inclusion of any of the "transfers from the Health Center account

used to make PTIT's payroll." Parisi does not provide a specific

dollar amount, but the challenge appears to account for over $1

million of the $1.6 million restitution order.

In both cases, the gist of Parisi's argument is that he

was not the "cause" of these losses, as the decision to make those

illicit transfers was made by Newell and other members of the

Tribe's political leadership. Newell, in many cases with the

tribal council's express consent, made the decision to transfer

funds from federal grants to pay for, among other things, the

council members' own salaries. Similarly, the $33,000 check to the

Joint Tribal Council to cover the cost of the Racino referendum

effort was authorized by Newell and approved by three separate

council members. It was delivered to the Joint Tribal Council by

Joe Socobasin, the Tribe's lieutenant governor at the time. It

does not appear that Parisi had any say in deciding whether to

support the Racino effort in the first place, or where the funds to

do so would come from. The entirety of Parisi's involvement with

this check appears to be that Newell ordered him to have it drawn

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up, an order that he in turn conveyed to Frances Neptune, the

Tribe's IHS bookkeeper. The Tribe's habit of playing fast and

loose with federal grant money, Parisi argues, was present "before

[Parisi] arrived . . . and continued after he left." Therefore, he

contends, he was not a cause of the losses under Vaknin.

The uncontroverted evidence in the record does indeed

suggest that Parisi may have been set up by Newell to take the fall

for the Tribe's corrupt financial practices. Unfortunately for

Parisi, however, it is well established that defendants can be

required to pay restitution for the reasonably foreseeable offenses

of their co-conspirators. Collins, 209 F.3d at 4. As we noted

above, even if Parisi's role was as limited as he suggests --

carrying out or transmitting Newell's orders -- that is sufficient

to support his conviction for conspiring with Newell to misapply

federal funds. Since at some point the financial impropriety must

have been glaringly obvious, and since there is no question that

Parisi's co-conspirator, Newell, caused the transfers, Parisi's

challenge to the inclusion of these amounts must be denied.

Parisi's reliance on United States v. Neal, 36 F.3d 1190,

1200-01 (1st Cir. 1994), is misplaced. It is true that we held in

Neal that a person who aided others in committing a bank robbery,

but did not actually participate in the robbery itself, could not

be required on that basis alone to make restitution for the full

amount of the loss suffered by the bank. However, as we made clear

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in Neal, Congress has insisted on a different standard when a

defendant has been convicted of a federal crime that "require[s]

proof of a scheme, conspiracy, or pattern of criminal conduct."

Id. at 1200; see also Collins, 209 F.3d at 3.31 Unlike the

defendant in Neal, Parisi was most definitely convicted of such a

crime. Therefore, the reckoning of the losses that may be laid at

his doorstep is substantially broader than it otherwise would have

been.

3. $15,900 Indian Township Housing Authority

Parisi claims that the district court erred in including

$15,900 based on transfers from the Indian Township Housing

Authority. The district court, Parisi argues, explicitly conceded

that Parisi was not involved in these transfers but went ahead and

included them in the restitution order anyway. Our review is for

abuse of discretion.

Parisi claims that the district court found that Parisi

"had nothing to do" with the transfers from the Housing Authority.

It is not clear from the record whether or not the district court

made such a finding. The portion of the sentencing transcript on

which Parisi relies shows that the parties were disputing another

matter -- Parisi's contention that the PSR should reflect that he

31
The operative statutory language of the VWPA, at issue in Neal
and Collins, is identical to that of the MVRA, applicable here.
Compare Neal, 36 F.3d at 1200 (discussing VWPA), and Collins, 209
F.3d at 2-3 (same), with 18 U.S.C. § 3663(a)(2) (MVRA).

-72-
never transferred money to accounts outside the tribal government's

control. The court overruled Parisi's objection, and stated that

it "takes into account the parenthetical added to paragraph 26, and

with that addition believes the paragraph to be accurate."32

However, while the referenced parenthetical does include Parisi's

insistence that he had nothing to do with the Housing Authority

transfers, no actual discussion of that claim is reflected in the

sentencing transcript, as the discussion instead was focused on the

issue of his responsibility for transferring money to non-tribal

accounts.

Also bearing on our analysis here is the fact that many

of these transfers from the Housing Authority's funds appear to

have been undertaken exclusively by Newell for his own purposes --

e.g., a "donation" for the marriage of "Mr. and Mrs. Tammy Newell,"

unspecified "loans" in small amounts, compensation to Newell

himself for "mileage," and medical assistance to Tribe members

whose relationship to Newell and/or Parisi is unexplained. In the

absence of an explicit ruling by the district court, we are left

uncertain whether the district court viewed these transfers as not

within the scope of the (tacit) agreement between Newell and

32
The parenthetical reads, "Parisi advised that he never
transferred any money from a federally-funded account to an account
outside the control of the [Tribe]. He only transferred federal
funds between [Tribe]-controlled accounts, and always at the
Governor's direction. Parisi had nothing to do with Housing
Authority transfers."

-73-
Parisi, but mistakenly did not deduct them from the overall

restitution order, or if the court concluded that they were,

appearances notwithstanding, indeed part of the overall conspiracy.

Particularly in light of the extensive number of transactions

involved, and the factual complexity of the case, both

possibilities seem equally plausible. Because of the ambiguity in

the record, we remand the restitution order to the district court

to clarify its disposition of the $15,900 Indian Township Housing

Authority transfers.

4. $30,000 DOJ COPS grant

Parisi raises a similar contention in his reply brief as

to the inclusion of $30,000 based on the misapplication of a DOJ

COPS grant. The district court stated that "[b]oth sides seem to

agree that the PSR is inaccurate to the extent it states that

Mr. Parisi requested the transfer of those funds. The statement

will not be considered by the court." Nevertheless, the

restitution order included this amount. Parisi's suggestion is

that this was an oversight. The government's somewhat gnostic

counter-suggestion is that the district court ruled only that it

"would not consider at sentencing" the PSR's claim that Parisi had

requested the transfer, but that it nevertheless intended to

include the $30,000 in the restitution order.

Once again, it is simply unclear on the record what the

district court intended. It is possible that the district court

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concluded that the $30,000 DOJ COPS transfer was to be excluded

from consideration. But we are not in a position to assert as much

with any confidence.

However, Parisi only raised this issue in his reply

brief. As we have noted, "issues raised for the first time in an

appellant's reply brief are generally deemed waived." United

States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998). Parisi attempts

to circumvent this rule by characterizing the DOJ COPS grant issue

as merely another instance of the restitution order including

"acquitted conduct." But Parisi was not in fact acquitted of this

conduct. He was convicted of count 30, which, among other things,

alleged misapplication of the COPS grant. The claim is therefore

procedurally defaulted.

C. Repayment of misapplied funds

Parisi next argues that the district court failed to

consider "amounts that were misapplied but subsequently repaid."

As before, our review is for abuse of discretion.

Parisi argues that some of the moneys that were

transferred from the federal grants into the Tribe's general

accounts were subsequently repaid by the Tribe. Therefore, it was

error to base the restitution order on the initial quantity

transferred rather than the amount net repayments. Parisi argues

that the restitution order "grossly exaggerates" the actual losses,

and notes that restitution must be gauged by "actual loss" to the

-75-
victim, United States v. Galloway, 509 F.3d 1246, 1253 (10th Cir.

2007), and that the burden is on the government to establish the

amount of the loss. 18 U.S.C. § 3664(e).

Unfortunately, Parisi fails to provide any details about

the alleged repayments. He fails to specify to whom the payments

were made, who they were made by, when they were made, or how much

was repaid. At sentencing, the district court heard from the

parties as to whether those Tribe members whose retirement accounts

had been affected by the misuse of earmarked money had been

compensated, and that the government conceded that "five or six"

such individuals had in fact been repaid. Neither party put

forward a specific dollar amount that had been repaid.33

The MVRA stipulates that "[a]ny dispute as to the proper

amount or type of restitution shall be resolved by the court by the

preponderance of the evidence." 18 U.S.C. § 3664(e). As it does

not appear that Parisi disputed the inclusion of allegedly repaid

amounts in the PSR or at sentencing, we do not discern any abuse of

discretion on this score.

D. The Excessive Fines clause

Finally, Parisi claims that the imposition of the

approximately $1.6 million restitution order is a violation of the

33
Count 30 of the indictment charged Newell and Parisi of
misapplying $45,824 from the Tribe's retirement fund; the judgment
entered against Parisi ordered restitution in the amount of
$43,367.50.

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Excessive Fines Clause of the Eighth Amendment because (a) the

funds were spent on tribal government expenses, (b) Parisi did not

personally benefit from the funds in question, (c) he does not have

the resources to repay such an amount, and (d) the size of the

order will "prevent him from achieving any reasonable livelihood."

We have never held that the Excessive Fines Clause of the

Eighth Amendment applies to restitution. The circuits that have

considered challenges to restitution orders under the Excessive

Fines clause have held that where the restitution order reflects

the amount of the victim's loss no constitutional violation has

occurred. See United States v. Lessner, 498 F.3d 185, 205-06 (3d

Cir. 2007); United States v. Newsome, 322 F.3d 328, 342 (4th Cir.

2003); United States v. Dubose, 146 F.3d 1141, 1145 (9th Cir. 1998)

(noting that "[w]here the amount of restitution is geared directly

to the amount of the victim's loss caused by the defendant's

illegal activity, proportionality is already built in."). This is

not surprising, as restitution is inherently proportional, insofar

as the point of restitution is to restore the victim to the status

quo ante. Restitution is distinct in this regard from forfeiture,

as Parisi concedes.

In this case, the amount of restitution ordered was the

sum of the moneys that Parisi was found to have misapplied or for

which he submitted false claims. Even assuming that restitution

orders may be challenged under the Excessive Fines clause, the

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restitution ordered in this case would not therefore violate

Parisi's rights.

VIII. Conclusion

For the reasons given above, we vacate Parisi's

conviction on count five, reduce the restitution order entered

against him by $129,044, remand for further clarification of

whether the Indian Township Housing Authority transfers were meant

to be included in the restitution order, and otherwise affirm.

Vacated and Remanded.

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