USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1811
UNITED STATES,
Appellee,
v.
FRANCIS BOOTS,
Defendant, Appellant.
____________________
No. 94-1812
UNITED STATES,
Appellee,
v.
ELLWYN COOK,
Defendant, Appellant.
________________
No. 94-1813
UNITED STATES,
Appellee,
v.
DEWEY LAZORE,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge] ___________________
____________________
Before
Stahl, Circuit Judge, _____________
Campbell, Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____________
____________________
Robert A. Costantino, for appellant Francis Boots. ____________________
Ronald Cohen, for appellant Ellwyn Cook. ____________
Stephen R. Kaplan, for appellant Dewey Lazore. _________________
Margaret D. McGaughey, with whom Jay P. McCloskey, United States _____________________ ________________
Attorney, was on brief for appellee.
____________________
March 29, 1996
____________________
CAMPBELL, Senior Circuit Judge. In this _______________________
consolidated appeal, defendants-appellants Francis Boots,
Ellwyn Cook, and Dewey Lazore challenge their convictions for
conspiracy, in violation of 18 U.S.C. 371, to commit three
offenses, and their convictions of the substantive offenses:
1) to devise a scheme or artifice using the wires in
interstate commerce with intent to defraud Canada and the
Province of Nova Scotia of excise duties and tax revenues, in
violation of 18 U.S.C. 1343; 2) to devise a scheme or
artifice to deprive the residents of the Passamaquoddy
Reservation in Maine of the honest services of their police
chief, in violation of 18 U.S.C. 1343 and 1346; and 3) to
travel interstate with the intent to facilitate bribery, a
crime under Maine state law, in violation of 18 U.S.C.
1952. Judgment was entered in the United States District
Court for the District of Maine following a jury trial.
I. Facts I. Facts
Construed in the light most favorable to the
government, the evidence indicates that between April and
November 1992, defendants took part in a scheme to transport
tobacco from a Native American reservation in upstate New
York ("Akwasasne") into New Brunswick, Canada, without paying
the taxes and excise duties levied upon the importation of
tobacco by Canadian laws. The tobacco was transported
-3- 3
surreptitiously into Canada through the Passamaquoddy
Reservation in Pleasant Point, Maine, bypassing customs
checkpoints at the Canadian border.
At the trial, Passamaquoddy Tribe member Anthony
Stanley testified that on April 15 he was called to discuss
some tobacco business by Beverly Pierro, a friend of his
friend, Francis Boots. Later that day, Stanley approached
his friend Frederick Moore, who was then serving as chief of
police of the Passamaquoddy Tribe ("the Tribe") at Pleasant
Point. Stanley told Moore that two Mohawks from Akwasasne
were in Calais, Maine and wanted to meet with him that
evening to discuss "mov[ing] tobacco." Moore (who was
familiar with Akwasasne from having spent time there twelve
years earlier at an Indian solidarity demonstration1) agreed
to meet. However, unknown to Stanley, Moore then contacted a
law enforcement officer at the Bureau of Indian Affairs (BIA)
for advice and received a go-ahead to see what the two
Mohawks wanted.
The four -- Stanley, Moore, Cook, and Lazore -- met
that evening at a motel. It could be found from the evidence
that Cook and Lazore knew that Moore was a police chief.2
____________________
1. The terms "Native American," "Indian," and "aboriginal"
used herein are taken from the defendants' briefs and
testimony.
2. Stanley testified that when Moore asked in their initial
phone call whether the two knew that he was a police chief,
Stanley said yes. Moore testified that at the evening
-4- 4
The two said that they wanted to bring tobacco from Akwasasne
to Passamaquoddy and sell it to Moore and Stanley, who would
profit by selling it to established markets in New Brunswick,
Canada. Moore declined to purchase their tobacco, but said
he would listen further to their objectives and the price
they would pay for his involvement.
Cook explained that the aim was to transport
tobacco "unmolested by either government." He indicated that
they could not transport the tobacco themselves because their
names were known. The group proceeded to discuss law
enforcement efforts on the reservation, possible border
crosspoints, a storage place for the tobacco, and the
potential for growth in their trading activities, with
Moore's help and his recruitment of others. Cook offered to
pay Moore $20 per case of tobacco transported. Moore said
that he would think about the proposal and reply within a
week. At the end of the meeting, he was given some tobacco
which he split with Stanley.
____________________
meeting he was not in uniform, but was wearing a baseball hat
that had the insignia of the Pleasant Point Police Department
on it. He admitted that the two defendants never stated at
the meeting that they were approaching him because he was a
police chief. However, Moore testified that he told them he
was armed and was a cop. The four also specifically
discussed law enforcement on the reservation, in response to
Lazore's inquiry about whether they had anything to fear from
police officers. The following day, Lazore and Cook saw
Moore when he was in uniform in his police cruiser and waved
to him from their car.
-5- 5
Moore updated his contact at BIA and the next day
agreed to work undercover for the Federal Bureau of
Investigation (FBI). The following week he went with agents
of the FBI and Royal Canadian Mounted Police (RCMP) to view
possible offloading sites near St. Andrews, New Brunswick,
Canada. Moore took Stanley to some of the same places later
in the month.
Defendants Cook and Lazore next met with Moore,
Stanley, Pierro, and her boyfriend, Jake Boots (brother of
defendant, Francis Boots) on April 28, 1992. They discussed
navigation routes and law enforcement concerns, among other
matters. Moore told the group that he had access to the
schedules and communications of most of the law enforcement
agencies. They met again the next day, and Moore took Pierro
and Jake Boots by boat from the Passamaquoddy Reservation to
the Canadian shore while explaining points about navigation.
The first tobacco delivery was made on May 2.
Defendants Cook, Lazore, and Francis Boots, along with Pierro
and Jake Boots, brought 50 cases of tobacco to Stanley's
house, where they met Moore. Moore supplied a boat and
navigated it to St. Andrews with Stanley and Jake Boots.
They met two contacts who paid them $1000, which Stanley and
Moore split (Moore giving his share to the FBI). Moore made
similar deliveries across the border accompanied by Stanley,
-6- 6
Jake Boots, or both on May 11, May 16, and June 27. Moore
and Stanley attempted to deliver tobacco on June 1, but
returned with the cases because their Canadian contact did
not show. Moore delivered tobacco on June 9, accompanied by
an FBI and border agent. No deliveries were made between
July and November due to the incarceration of a key contact,
Stanley Johnson. Moore and Jake Boots, assisted by Pierro,
made the last delivery on November 7.3
Moore testified that, in all, almost 1850 kilograms
of tobacco were transferred across the Canadian border.4
The government's expert on Canadian taxes stated that the
total per kilogram tax on tobacco was $106.47 Canadian.5 He
inferred that taxes had not been paid, because the packages
were not stamped as is customarily done. The wire fraud and
conspiracy counts in the indictment alleged that wires were
used in furtherance of a scheme to defraud Canada and the
Province of Nova Scotia of tobacco taxes due. To establish
this element, the government introduced evidence of four
____________________
3. Anthony Stanley, Beverly Pierro, Jake Boots, and Stanley
Johnson were also charged with various offenses, and entered
guilty pleas during the trial.
4. Omitting the June 9 transfer by Moore and law
enforcement agents, the amount transferred was 1500
kilograms.
5. This sum includes an excise duty of $18.33, excise tax
of $35.64, and a provincial excise tax of $52.50.
-7- 7
interstate telephone conversations between Moore and Pierro
from May 1992 through July 1992.
During the period of tobacco deliveries, Moore (at
the FBI's request) did not disclose his role to the tribal
governor, who supervised him.6 The tribal governor learned
of Moore's activity in late June, when Stanley brought it to
the attention of the tribal council. Moore was suspended on
June 25 without pay and was later dismissed in August for
neglect of duty and insubordination. He testified that he
believed the dismissal was not a result of his tobacco
trading activities, but rather related to an investigation of
the tribal governor.
Boots and Cook argued, in defense, that they
pursued the above activities with a good faith belief in an
aboriginal right to trade tobacco freely with Canada. This
belief was based upon their adherence, as members of the
Ganiengehaga Nation, to a constitution called the "Great Law
of Peace," and on the fact that their reservation, Akwasasne,
includes lands in New York State, Ontario, and Quebec. The
two defendants testified that they recognized neither a
formal border between the United States and Canada nor a
Canadian right to tax the sacred product of tobacco, though
____________________
6. For his investigatory work, Moore received from the
federal government $350 per week between August and mid-
December, a $25,000 payment in December, and various
expenses.
-8- 8
they admitted they were aware that Canada claimed such a
right and imposed such imposts. Boots maintained that he
believed the shipped tobacco was intended for an Indian
market in Canada. He further stated that Moore was hired
because of his navigational skills and not because of his
statusas thePassamaquoddy policechief. Lazore didnot testify.
II. Discussion II. Discussion
Defendants assert on appeal that the district court
erred in the following ways: 1) in refusing to dismiss the
indictment or grant a judgment of acquittal, on the ground
that a "scheme to defraud" Canadian authorities of duties and
taxes is not cognizable under the wire fraud statute; 2) in
finding the Maine bribery statute, which provided the basis
for the Travel Act violation, applicable to Moore as police
chief of a Native American reservation; 3) in denying a
judgment of acquittal on the wire fraud counts charging a
scheme to deprive Passamaquoddy Tribe members of the honest
services of their police chief, despite alleged interference
of the federal statute with tribal sovereignty; and 4) in
refusing to include their specific version of a good faith
defense in the jury instructions. They claim that their
convictions of conspiracy and independent statutory
-9- 9
violations must be reversed because of these errors.
Defendant Boots also challenges his sentence.7
A. Wire Fraud: Scheme to Defraud Canada of Duties A. Wire Fraud: Scheme to Defraud Canada of Duties
and Taxes and Taxes
The indictment charged a wire fraud violation in
the conspiracy count and four independent counts upon the
theory that defendants intended to defraud Canada and the
Province of Nova Scotia of tobacco duties and taxes, using or
causing the wires to be used interstate in furtherance of
____________________
7. Lazore argues that the district court erred in denying a
motion to dismiss the indictment based on lack of
jurisdiction to prosecute Native Americans for transporting
tobacco into Canada, a right claimed to be protected by the
Jay Treaty. He relies on language in Article III of the
Treaty of Amity, Commerce and Navigation (1794) between the
United States and Great Britain, which provided:
[N]or shall the Indians passing or repassing with
their own proper goods and effects of whatever
nature, pay for the same any impost or duty
whatever. But goods in bales, or other large
packages, unusual among Indians, shall not be
considered as goods belonging bona fide to Indians.
The Jay Treaty, Nov. 19, 1794, U.S.-Gr.Brit., 8 Stat. 116,
118. The government has argued persuasively that this
argument grounded in the Jay Treaty was waived by defendants'
failure to press it sufficiently in the district court. In
any event, we discern no error in the lower court proceedings
on this ground. See generally Karnuth v. United States ex ______________ _______ ________________
rel. Albro, 279 U.S. 231, 239 (1929) ("[T]he privilege ___________
accorded by article 3 is one created by the treaty, having no
obligatory existence apart from that instrument, . . . . It
is, in no sense, a vested right. It is not permanent in its
nature. It is wholly promissory and prospective, and
necessarily ceases to operate in a state of war. . . .");
Akins v. United States, 551 F.2d 1222, 1229-1230 (C.C.P.A. _____ _____________
1977) (duty exemption of Jay Treaty was abrogated by the War
of 1812, and though similar language was incorporated in
federal tariff acts until 1897, upon repeal of that last act
no such language preserving the right was reenacted
thereafter).
-10- 10
this scheme. The relevant telephone communications took
place between Pierro and Police Chief Moore on May 25, May
31, June 7, and July 24, 1992.8 The government's evidence
supports a reasonable inference that the calls were made
between Maine and New York, where Moore and Pierro resided.
Defendants argue that the district court erred in
denying their motion to dismiss based on the government's
alleged failure to show a proper "scheme to defraud" as
section 1343 requires.9 Defendants insist, inter alia, that _____ ____
(1) they made no affirmative misrepresentation to Canadian ___________
customs authorities relative to their tobacco trading
activities; and (2) their scheme had as its object no
protected property interest within the wire fraud statute.
____________________
8. Defendants need not personally use the wires as long as
such use was a reasonably foreseeable part of the scheme in
which they participated. See United States v. Maze, 414 U.S. ___ _____________ ____
395, 399 (1974); Pereira v. United States, 347 U.S. 1, 8-9 _______ _____________
(1954).
9. The wire fraud statute provides:
Whoever, having devised or intending to devise any
scheme or artifice to defraud, or for obtaining
money or property by means of false or fraudulent
pretenses, representations, or promises, transmits
or causes to be transmitted by means of wire . . .
communication in interstate or foreign commerce,
any writings, signs, signals, pictures, or sounds
for the purpose of executing such scheme or
artifice, shall be fined under this title or
imprisoned not more than five years, or both . . .
.
18 U.S.C. 1343.
-11- 11
We turn first to defendants' insistence that the
absence of any affirmative misrepresentation -- such as a ___________
false customs declaration -- rendered their smuggling
activities non-fraudulent for wire fraud purposes. The
government responds that scheming to bypass Canadian customs
authorities and not to declare the tobacco was a sufficient
form of deceit to meet the requirements of section 1343.10
Cf. United States v. Brewer, 528 F.2d 492, 496 (4th Cir. ___ _____________ ______
1975) (scheme to sell cigarettes into another state without
registering with tax officials there, as required by Jenkins
Act, is mail fraud); see also McEvoy Travel Bureau, Inc. v. ________ ___________________________
Heritage Travel, Inc., 904 F.2d 786, 791 (1st Cir.), cert. ______________________ _____
denied, 498 U.S. 992 (1990) ("the scope of fraud under these ______
[federal fraud] statutes is broader than common law fraud,
and . . . no misrepresentation of fact is required").
We see no need, however, to decide whether a
smuggling scheme structured like the instant one, if
____________________
10. Counts 1 and 18 through 21 charged that defendants
devised a scheme
in violation of Sections 236 & 240(1), of the
Excise Act, Revised Statutes of Canada, 1985, Ch.
E-14 and amendments thereto; Sections 155 & 160 of
the Customs Act, Revised Statutes of Canada, 1985
(2d Supp.) Ch. 1; Section 25(1)(a) of the Tobacco
Tax Act, Ch. 470 of the Revised Statutes of Nova
Scotia, 1989 and amendments thereto; and Section 7
of the Health Services Tax Act, Ch. 198 of the
Revised Statutes of Nova Scotia, 1989.
Part II of the Customs Act imposes an obligation on importers
to declare dutiable goods and pay any taxes or duties imposed
by other laws relating to customs.
-12- 12
practiced upon, say, federal or other authorities within the
United States, would be a fraudulent scheme within section
1343. Even assuming it would be, we face the separate
problem that the object of the scheme here was exclusively to
defraud a foreign government, rather than our own, of customs
and tax revenues imposed under foreign law. We believe this
added factor pushes defendants' scheme beyond the parameters
of the frauds cognizable under section 1343.
The prosecution, relying on cases upholding wire
and mail fraud convictions for schemes to evade domestic
taxes, argues that customs and tax revenues, even though owed
solely to a foreign governmental body under laws of the
latter's making, constitute money and property for purposes
of the wire and mail fraud statutes.11 See, e.g., United _________ ______
States v. Dale, 991 F.2d 819, 849 (D.C. Cir.) (federal tax ______ ____
revenues), cert. denied, 114 S. Ct. 286 and 114 S. Ct. 650 ____________ ___
(1993); United States v. Helmsley, 941 F.2d 71, 93-95 (2d _____________ ________
Cir. 1991) (state income taxes), cert. denied, 502 U.S. 1091 ____________
(1992); United States v. Bucey, 876 F.2d 1297, 1309-1310 (7th _____________ _____
____________________
11. The Supreme Court has held that only frauds affecting
the government's interests as property holder come within
section 1343, see Carpenter v. United States, 484 U.S. 19, 25 ___ _________ _____________
(1987); McNally v. United States, 483 U.S. 350, 358 n.8 _______ ______________
(1987) (mail fraud), although Congress has since criminalized
schemes to deprive another of the intangible right to honest
services as well, see 18 U.S.C. 1346 (effective November ___
18, 1988), infra. The Court has analyzed mail and wire fraud _____
offenses similarly, because they share the same relevant
statutory language. See Carpenter, 484 U.S. at 25 n.6. ___ _________
-13- 13
Cir.) (federal income taxes), cert. denied, 493 U.S. 1004 _____________
(1989); see also Otto G. Obermaier & Robert G. Morvillo, ________
White Collar Crime 9.02[1] at 9-30 n. 64 (1994) (federal ___________________
and state tax cases).
But none of the prosecution's cited wire fraud
cases have involved a scheme to deprive a foreign government _______
of its own taxes and similar exactions.12 The prosecution
urges that section 1343 should apply, because it does not
____________________
12. A somewhat similar factual pattern arose, but went
undecided, in this circuit in a civil context in Nodine v. ______
Textron, Inc., 819 F.2d 347 (1st Cir. 1987). _____________
The case that is perhaps most factually analogous
to the present -- though not particularly helpful here -- is
United States v. Gafyczk, 847 F.2d 685 (11th Cir. 1988), ______________ _______
which involved a scheme to import cigarettes into the United
States and to export them, repackaged with other materials in
mislabeled containers, into Italy without paying duties owed
there. The charges there included violations of 49 U.S.C.
121 (falsely making a bill of lading), 18 U.S.C. 1001
(making a false statement in a matter within the jurisdiction
of a U.S. government agency or department [the U.S. Customs
Service]), and 18 U.S.C. 371 (conspiring to defraud the
United States). Neither wire nor mail fraud was charged;
however, the court of appeals relied on McNally in _______
interpreting the "intent to defraud" element of section 121
to require that the government assert a pecuniary or property
interest which was the target of the fraud. See id. at 689- ___ ___
690. Defendants' convictions on these counts were reversed
for failure to show such an interest. See id. ("It is clear ___ ___
that such a deprivation could have occurred if the _____
appellants' actions had been even partially intended to evade
the payment of export duties or other levies properly owed to
the United States.") (emphasis supplied). The court added
that "the fact that the evidence may well have established
the appellants' intent to defraud Italy is of no import _____
because that nation is not identified as the object of the
effort to defraud in violation of 49 U.S.C.App. 121" as
alleged in the indictment. Id. at 690 (emphasis supplied). ___
The court expressed no opinion as to whether such a theory
would have been viable under section 121 (let alone under the
federal fraud statutes, to which section 121 was compared).
-14- 14
describe any particular type of victim of a scheme to
defraud. It punishes use of the wires in interstate or
foreign commerce in furtherance of "any scheme or artifice to
defraud." If domestic tax fraud falls under section 1343,
why not foreign revenue frauds as well, it is contended.
Federal wire prosecutions have been based on frauds against
private foreign businesses and individuals. See, e.g., __________
United States v. Lewis, 67 F.3d 225 (9th Cir. 1995) ______________ _____
(reversing wire fraud conviction for a scheme to defraud a
foreign bank where the jury instruction did not charge a
property interest as the target of the scheme); United States _____________
v. Van Cauwenberghe, 827 F.2d 424 (9th Cir. 1987) (affirming ________________
wire fraud conviction involving scheme to defraud a Belgian
investment broker and corporation), cert. denied, 484 U.S. ____________
1042 (1988).
However, schemes aimed at depriving a foreign
government of duties and taxes are not the same as domestic
tax frauds, nor are they even the same as private commercial
frauds aimed at foreign business entities or individuals. At
issue is not only whether "money or property," as such, is
being targeted, but more importantly here, the extent to
which constitutional and prudential considerations factor
into our analysis. Foreign customs and tax frauds are
intertwined with enforcement of a foreign sovereign's own
laws and policies to raise and collect such revenues -- laws
-15- 15
with which this country may or may not be in sympathy and
over which, in any event, we have no authority. In
recognition of this, our courts have traditionally been
reluctant to enforce foreign revenue laws. The "revenue
rule" -- a firmly embedded principle of common law, traced to
an opinion by Lord Mansfield, Holman v. Johnson, 98 Eng. Rep. ______ _______
1120 (K.B. 1775) -- holds that courts generally will not
enforce foreign tax judgments, just as they will not enforce
foreign criminal judgments, although they will enforce
foreign non-tax civil judgments unless due process,
jurisdictional, or fundamental public policy considerations
interfere. See Restatement (Third) of Foreign Relations ___
483 & n.1 (1987); see also Banco Nacional de Cuba v. _________ _________________________
Sabbatino, 376 U.S. 398, 448 (1964) (White, J., dissenting) _________
("[O]ur courts customarily refuse to enforce the revenue and
penal laws of a foreign state, since no country has an
obligation to further the governmental interests of a foreign
sovereign.") (footnote omitted); Her Majesty the Queen in ___________________________
Right of the Province of British Columbia v. Gilbertson, 597 __________________________________________ __________
F.2d 1161, 1164-1165 (9th Cir. 1979). The rationale of the
revenue rule has been said to be that revenue laws are
positive rather than moral law; they directly affect the
public order of another country and hence should not be
subject to judicial scrutiny by American courts; and for our
courts effectively to pass on such laws raises issues of
-16- 16
foreign relations which are assigned to and better handled by
the legislative and executive branches of government.
Although this case does not require us to enforce a
foreign tax judgment as such, upholding defendants' section
1343 conviction would amount functionally to penal
enforcement of Canadian customs and tax laws. The scheme to
defraud at issue -- proof of which is essential to conviction
-- had as its sole object the violation of Canadian revenue
laws. To convict, therefore, the district court and this
court must determine whether a violation of Canadian tax laws
was intended and, to the extent implemented, occurred. In so
ruling, our courts would have to pass on defendants'
challenges to such laws and any claims not to have violated
or intended to violate them. Where a domestic court is
effectively passing on the validity and operation of the
revenue laws of a foreign country, the important concerns
underlying the revenue rule are implicated. Of particular
concern is the principle of noninterference by the federal
courts in the legislative and executive branches' exercise of
their foreign policymaking powers. National policy judgments
made pursuant to that authority could be undermined if
federal courts were to give general effect to wire fraud
prosecutions for schemes of this type aimed at violating the
revenue laws of any country. It is noteworthy that the
federal statute criminalizing the smuggling of goods into
-17- 17
foreign countries punishes such activities only if the
foreign government has a reciprocal law. See 18 U.S.C. ___
546. A decision to uphold the present convictions would have
the effect of licensing prosecutions against persons who use
the wires to engage in smuggling schemes against foreign
governments irrespective of whether a particular government
had the reciprocal arrangement called for in section 546.
In the case of Canada, to be sure, we cannot say
that this specific legislative judgment would be undermined
by affirming the instant wire fraud conviction.13 We do
not condone defendants' smuggling activities, nor do we
question Canada's revenue laws or the desirability of
cooperation in respect to our mutual border. But application
of the wire fraud statute to a scheme of this type does not,
and cannot, turn upon our attitude towards Canada alone. The
revenue rule has not risen or fallen over the centuries based
on country-by-country judicial assessments of the potential
____________________
13. The United States has a treaty with Canada to exchange
information about smuggling across the border. See ___
Convention to Suppress Smuggling, June 6, 1924, U.S.-Can.
(ratified by Great Britain), 44 Stat. 2067. Yet a cursory
search has failed to make it clear whether a violation of
Canadian revenue or tax laws would be grounds for extradition
of the violator to Canadian authorities, suggesting some
doubt as to the degree of cooperation mutually promised. See ___
Treaty on Extradition, Dec. 3, 1971, U.S.-Can., 27 U.S.T.
983. We have not made a close examination into the extent of
Canada's reciprocal arrangements such as are contemplated
under 18 U.S.C. 546. Even assuming Canada were to qualify,
we see nothing in the wire fraud statute that would allow us
to limit the statute to wire frauds practiced against the
revenue laws of nations having reciprocal arrangements.
-18- 18
for a foreign relations conflict. Courts are neither
equipped nor constitutionally empowered to make such
assessments. Prosecutors, who operate within the executive
branch, might of course be expected not to pursue wire fraud
prosecutions based on smuggling schemes aimed at blatantly
hostile countries, but whether conduct is criminal cannot be
a determination left solely to prosecutorial discretion.
Rather, the longstanding rule instructs the courts to leave
this area alone, so that the legislative and executive
branches may exercise their authority and bargaining power to
deal with such issues, and also so that a foreign
government's revenue laws are not subjected to intrusive
scrutiny by the courts of this country.
It is true that the existence of a more specific
penal statute, such as the current anti-smuggling statute, 18
U.S.C. 546, would not be deemed impliedly to preempt the
general federal anti-fraud statutes if effect could
comfortably be given to both. See, e.g., United States v. _________ _____________
Brien, 617 F.2d 299, 310 (1st Cir.) (holding that Commodities _____
Futures Trading Act does not preempt or impliedly repeal wire
or mail fraud statutes and citing related cases), cert. _____
denied, 446 U.S. 919 (1980); Brewer, 528 F.2d at 498 ______ ______
("[Defendant's] use of the mails to escape regulation added a
different element and a new dimension to her failure to
comply with the [Jenkins] Act."). Effect, however, cannot be
-19- 19
given to section 1343 in these conditions without threatening
the reciprocity provision in section 546, and offending
generally the salutary principles underlying the revenue
rule. If Congress, notwithstanding these inherent tensions,
had meant to authorize the courts to enforce this kind of
application of the wire fraud statute, we think "it must
speak more clearly than it has." McNally, 483 U.S. at 360. _______
Our conclusion is further supported by the rule of lenity,
which holds that the harsher of two possible readings of a
criminal statute will be enforced only when Congress has
spoken clearly. See id. at 359-360; Fasulo v. United States, ___ ___ ______ _____________
272 U.S. 620, 629 (1926) ("[B]efore one can be punished [for
mail fraud], it must be shown that his case is plainly within
the statute."). We, therefore, hold that foreign tax and
customs frauds, such as the instant one, are not schemes to
defraud within the meaning of section 1343, and that
defendants' substantive convictions of wire fraud under
section 1343, based on the scheme to defraud Canada and Nova
Scotia of duties and taxes, must be reversed.
Our holding that it was legal error to apply the
wire fraud statute to defendants' Canadian smuggling scheme
requires us to set aside the conspiracy conviction under 18
U.S.C. 371 as well. Jurors "are not generally equipped to
determine whether a particular theory of conviction submitted
to them is contrary to law," though they are generally able
-20- 20
to analyze evidence and recognize a theory that is factually
inadequate. Griffin v. United States, 502 U.S. 46, 59 _______ ______________
(1991); United States v. Nieves-Burgos, 62 F.3d 431 (1st Cir. _____________ _____________
1995) ("Griffin distinguishes cases, like [Turner v. United _______ ______ ______
States, 396 U.S. 398 (1970)], which concern convictions that ______
may have rested on a basis that was not supported by the
evidence, from those concerning convictions possibly resting
on an invalid ground as a result of an error of law [such as
in Yates v. United States, 354 U.S. 298 (1957)]). The _____ ______________
district court instructed the jury that it could convict
under section 371 if the government proved beyond a
reasonable doubt that defendants conspired to commit at least
one of the three offenses charged as objects of the
conspiracy. Because it is impossible to tell which ground
the jury based the conspiracy conviction upon, the conviction
cannot stand. See Yates, 354 U.S. at 312. ___ _____
The government contends that even if the wire fraud
count falls, the conspiracy conviction should be affirmed
based on at least one of the two other objects alleged.
Since the jury found substantive violations of those
statutes, the argument goes, we should infer that it
unanimously found beyond a reasonable doubt that the
conspiratorial agreement extended, with respect to all
defendants, to at least one legally sufficient object. This
contention might be persuasive where a district court does
-21- 21
not give a "one-is-enough" charge, or a special verdict form
is required of the jury, such that the reviewing court is not
speculating on what the jury did or did not decide. Here,
however, it is at least possible that the jury did not ask
itself whether the conspiratorial agreement extended to the
two valid objects (interstate travel with intent to commit
bribery, and a scheme to defraud another of honest services)
with respect to all defendants, instead focusing on the
overall conspiratorial agreement to transport tobacco into
Canada without paying taxes and duties. Cf. United States v. ___ _____________
Carman, 577 F.2d 556, 567-568 (9th Cir. 1978) ("If the jury, ______
when considering the conspiracy count, focused only on the
crime embodied in the subsequently overturned substantive
crime conviction the conspiracy conviction also should be
overturned. . . . Criminal sanctions cannot rest on what an
appellate court thinks the jury would have done had the
issues put to it been framed differently."); see also United ________ ______
States v. Palazzolo, 71 F.3d 1233 (6th Cir. 1995) (where ______ _________
defendants were convicted of substantive offenses that were
also objects of a conspiracy, and district court gave
erroneous instruction on one offense, court reversed
conspiracy conviction because "the verdict lends itself at
least to the possibility that the jury found the defendants
guilty only of conspiring to violate" the legally inadequate
count); United States v. Musacchia, 955 F.2d 3 (2d Cir. ______________ _________
-22- 22
1991). Further, the two legally sufficient objects of the
conspiracy were not so intricately intertwined with the
invalid wire fraud count that we can necessarily say that the
conspiracy conviction had a legally correct basis. Cf. ___
United States v. Huebner, 48 F.3d 376 (9th Cir.) ("Under the ______________ _______
facts in this case, it would not have been possible for the
jury to have found a conspiracy to aid and abet attempted
[tax] evasion without also finding a conspiracy to defraud
the United States by obstructing [tax] collection. . . .
[T]here could be no danger that the jurors based their
conspiracy verdict on finding that the object was to aid and
abet attempted evasion without also finding that the object
was to defraud the United States by obstructing
collection."), cert. denied, 116 S. Ct. 71 (1994). The ____________
conspiracy conviction is vacated and that count is remanded
for further proceedings not inconsistent with this opinion,
which may, in the prosecution's discretion, include a new
trial on a properly narrowed indictment. See Yates, 354 U.S. ___ _____
at 327-328; Palazzolo, 71 F.3d at 1238; United States v. _________ ______________
Ochs, 842 F.2d 515, 529 (1st Cir. 1988). ____
B. Maine Bribery Statute as a Basis for Violation B. Maine Bribery Statute as a Basis for Violation
of the Travel Act of the Travel Act
We turn next to the substantive counts of
interstate travel to facilitate bribery, a crime under Maine
law, in violation of 18 U.S.C. 1952 and 2. The Interstate
Travel Act punishes "[w]hoever travels in interstate or
-23- 23
foreign commerce . . . with intent to . . . promote, manage,
establish, carry on, or facilitate . . . any unlawful
activity, and thereafter performs or attempts to perform"
such an act. 18 U.S.C. 1952(a). Bribery in violation of
state law is an "unlawful activity" within section 1952. See ___
United States v. Arruda, 715 F.2d 671, 681 (1st Cir. 1983). _____________ ______
The Maine bribery statute, charged here, provides in relevant
part:
1. A person is guilty of bribery in official and
political matters if:
A. He promises, offers, or gives any pecuniary
benefit to another with the intention of
influencing the other's action, decision, opinion,
recommendation, . . . or other exercise of
discretion as a public servant. . . . ___________________
17-A M.R.S.A. 602(1)(A) (emphasis supplied). "Pecuniary
benefit" means economic gain, including money or property.
Id. 602(2)(C). ___
Defendants were convicted of traveling between New
York and Maine during the spring of 1992 with intent to carry
on and facilitate the bribery of Moore, whom they knew was
the police chief of the Passamaquoddy Reservation, and
thereafter performing and causing to be performed acts to
facilitate bribery, and aiding and abetting the offense.
Evidence was presented that Cook and Lazore gave Moore
tobacco at the end of their first meeting on April 15 (at
which he was offered payment for his involvement); Cook paid
Moore $1000 (Canadian) for the tobacco delivery on May 2;
-24- 24
Boots paid Moore $600 for the delivery on May 16; and
defendants discussed with Moore concerns with law enforcement
on the reservation and elsewhere which might interfere with
their objectives.14
Defendants challenge their convictions for Travel
Act violations on two principal grounds: 1) Moore, as police
chief of the Passamaquoddy Indian Reservation, was not, they
argue, a "public servant" within the meaning of the Maine
bribery statute, supra; and 2) even if a public servant, his _____
official duties did not include enforcing Canadian or federal
laws and thus were not influenced.15 We do not find merit
in either contention.
"Public servant" is defined in the Maine criminal
code as "any official officer or employee of any branch of
government and any person participating as juror, advisor, __________
consultant or otherwise, in performing a governmental ____________________________
____________________
14. The indictment charged that Pierro arranged for
additional payments totaling $3000 to Moore between May and
mid-September of 1992. The record indicates that Cook's
original offer of $20 per carton was not precisely carried
out, as Moore and Stanley usually were to share the payments.
15. Defendants also contend that it was legally impossible
for Moore to have been bribed after June 25, 1992, when he
was suspended from office. We agree with the government that
this claim does not get defendants far, since the relevant
dates for the Travel Act violations preceded his suspension.
Defendants have not challenged the Travel Act charge other
than to attack the predicate crime of bribery in violation of
state law.
-25- 25
function." Id. 2(21) (emphasis supplied). "Government," ________ ___
in turn, is defined as:
the United States, any state or any county,
municipality or other political unit within
territory belonging to the State, the United
States, or any department, agency or subdivision of
any of the foregoing, or any corporation or other
association carrying out the functions of
government or formed pursuant to interstate compact
or international treaty.
Id. 2(13). Whether the foregoing definitions encompass the ___
police chief of the Passamaquoddy Tribe at Pleasant Point
requires consideration of the Tribe's legal relationship with
the State of Maine. That relationship is spelled out in the
federal Maine Indian Claims Settlement Act of 1980, 25 U.S.C.
1721-1735 ("Settlement Act"), which ratified Maine's Act
to Implement the Maine Indian Claims Settlement, 30 M.R.S.A.
6201-6214 ("Maine Implementing Act"). See Passamaquoddy ___ _____________
Tribe v. State of Maine, 75 F.3d 784, 787 (1st Cir. 1996); _____ ______________
Couturier v. Penobscot Indian Nation, 544 A.2d 306 (Me. 1988) _________ _______________________
(the purpose of the Implementing Act was "to serve as a
basic, organic document establishing the broad and basic
provisions of the relationship between the State and the
Maine Indians").
Under these acts, the Passamaquoddies are declared
to be "subject to the laws of the State and to the civil and
criminal jurisdiction of the courts of the State to the same
extent as any other person . . . therein" unless otherwise
provided. 30 M.R.S.A. 6204; see also 25 U.S.C. _________
-26- 26
1725(b)(1) (approving the jurisdictional scope set forth in
the Maine Implementing Act). However, the Maine Implementing
Act also grants powers and duties to the Tribe comparable to
those of a municipality (in addition to special authority to
regulate internal tribal matters). See 30 M.R.S.A. 6206(1) ___
("Except as otherwise provided in this Act, the Passamaquoddy
Tribe . . . shall have, exercise and enjoy all the rights,
privileges, powers and immunities, . . . and shall be subject
to all the duties, obligations, liabilities and limitations
of a municipality of and subject to the laws of the State");
id. 6206(2) (granting a tribe, its officers, and employees ___
immunity from suit when "the respective tribe . . . is acting
in its governmental capacity to the same extent as any
municipality or like officers or employees thereof within the
State"); Penobscot Nation v. Stilphen, 461 A.2d 478, 488 (Me. ________________ ________
1983). Tribe-appointed law enforcement officers "possess the
same powers and are subject to the same duties, limitations
and training requirements as other corresponding law
enforcement officers under the laws of the State." 30
M.R.S.A. 6210(4). These powers include shared authority
for enforcing state laws within Indian territories (except
for laws, not applicable here, over which a tribe may have
exclusive jurisdiction). See id. 6210(4). ___ ___
The Maine legislature has thus explicitly equated,
in most respects, the powers and obligations of tribes and
-27- 27
tribal law enforcement officers with those of municipalities
and corresponding law enforcement officers. See Couturier, ___ _________
544 A.2d at 308 (tribes share the immunity of municipalities
under the Maine Tort Claims Act by operation of section 6202
of the Maine Implementing Act, and this immunity extends to a
tribe-appointed police officer acting in a governmental
capacity). Since a law enforcement officer employed by a
municipality would undoubtedly qualify as a "public servant,"
see 17-A M.R.S.A. 2(13) & 2(21), so too, we believe, would ___
a tribe-appointed law enforcement officer. The definition of
"public servant" extends, in any event, to a person (whether
or not an official officer or employee) "participating as
juror, advisor, consultant or otherwise performing a
governmental function." Id. 2(21). Moore was charged with ___
enforcing state laws and tribal ordinances within the
reservation. We think he fits, therefore, rather easily
within the Maine statute's definition of public servant.
Defendants' reliance upon United States v. Tonry, _____________ _____
837 F.2d 1281 (5th Cir. 1988) is misplaced. Tonry may _____
initially appear analogous, because it involved charges of
conspiracy to violate and substantive violation of the Travel
Act based on interstate travel with intent to bribe the
chairman of an Indian tribe. However, unlike the instant
case which involves defining "public servant" under Maine
law, the sole question resolved by the Fifth Circuit was
-28- 28
whether the tribal chairman was a "private fiduciary" under
Louisiana's Commercial Bribery Statute. Defendants call
attention to Tonry because the court indicated that the _____
tribal chairman was not a Louisiana public official within
the meaning of another statute targeting public bribery. Yet ______
in that case, the government conceded that issue, given the
particular statutory scheme. Here, in contrast, the Maine
criminal code defines "public servant" quite broadly using a
functional measure, which is notably absent from the public __________
bribery law referred to in Tonry. More importantly, Maine's _____
criminal laws operate against the backdrop of the Settlement
Act which ratified the Maine Implementing Act. See Penobscot ___ _________
Nation, 461 A.2d at 489 ("It was generally agreed that the ______
acts set up a relationship between the tribes, the state, and
the federal government different from the relationship of
Indians in other states to the state and federal
governments."). Defendants cannot expect the jurisdictional
burdens on the Tribe resulting from these acts to "disappear
merely because they have become inconvenient." Passamaquoddy _____________
Tribe, 75 F.3d at 794.16 _____
____________________
16. We similarly dismiss Cook's assertion that the bribery
of Moore to facilitate smuggling operations from New York to
Maine and into Canada is an internal tribal matter protected
from federal and state interference. Cook offers no
statutory support for interpreting the relevant provision of
the Maine Implementing Act this broadly, and indeed, the case
law is to the contrary. See 30 M.R.S.A. 6206(1) ___
("[I]nternal tribal matters, including membership in the
respective tribe or nation, the right to reside within the
-29- 29
Defendants also challenge the predicate state
bribery violation on the ground that Moore's official duties
excluded enforcing federal or Canadian law and thus could not
be influenced. As noted, the statute prohibiting bribery in
official matters punishes one who "promises, offers, or gives
a pecuniary benefit with the intention of influencing the ___________________________________
other's action, decision, . . . or other exercise of ______ ________ ___________________
discretion as a public servant." 17-A M.R.S.A. 602(1)(A) _______________________________
(emphasis supplied). The jury could find on the evidence
presented that, as police chief, Moore was responsible for
general surveillance of the reservation, and that defendants
selected him, in part, with the intention that he divert
other officers on the reservation from patrolling areas of
smuggling activity. Cf. State v. Beattie, 129 Me. 229, 151 ___ _____ _______
A. 427 (1930) (defendant charged with bribing county sheriff
to refrain from seizing liquor and arresting person making an
unlawful sale). Moore testified that he normally would have
referred smuggling activity to the local district attorney's
office and pursued the matter further if so directed. He
also testified to having a mutually beneficial working
____________________
respective Indian territories, tribal organization, tribal
government, tribal elections and the use or disposition of
settlement fund income shall not be subject to regulation by
the State."); Penobscot Nation, 461 A.2d at 490 (holding that ________________
operation of beano games is not an internal tribal matter,
for "the term embraces only those matters illustratively
listed in the statute and other matters like them," having
historical cultural importance).
-30- 30
relationship with Canadian authorities which included
exchanging information. It may be conceded that his duties
did not formally include enforcing federal or Canadian law.
But an honest municipal police officer would be expected to
keep his eyes open for and report federal and, in present
circumstances, even foreign criminal violations; receiving
something of value to turn a deliberate blind eye would limit
his discretion in his official capacity as tribal police
chief.
Defendants' related contention that they recruited
Moore simply because of his navigational skills and not his
status as police chief is undermined by substantial evidence
showing that they were aware of Moore's status and concerned
with law enforcement activities from the first meeting
onward. We conclude that bribery was a legally sufficient
foundation for the Travel Act violations, and therefore
affirm those convictions.
C. Wire Fraud: Scheme to Defraud of Honest C. Wire Fraud: Scheme to Defraud of Honest
Services Services
A third substantive offense, related to the bribing
of the police chief, was that defendants devised a scheme to
defraud the residents of the Passamaquoddy Reservation at
Pleasant Point of the honest services of their police chief
and knowingly caused the wires to be used in interstate
commerce in furtherance of the scheme, in violation of 18
-31- 31
U.S.C. 1343 and 1346.17 Defendant Lazore asserts,
without development, that the district court should have
issued a judgment of acquittal on these counts in deference
to tribal sovereignty. The government responds that tribes
are, in any event, subordinate to the federal government.
While neither side spells out the dispute, we understand it
to be principally a jurisdictional one, namely, that the
federal government lacks authority to prosecute defendants on
a matter involving internal relations of the Passamaquoddy
Tribe.
The Supreme Court has stated that while Indian
tribes are "'unique aggregations possessing attributes of
sovereignty over both their members and their territory,'"
"[t]heir incorporation within the territory of the United
States, and their acceptance of its protection, necessarily
divested them of some aspects of the sovereignty which they
have previously exercised." United States v. Wheeler, 435 _____________ _______
U.S. 313, 323 (1978) (quoting United States v. Mazurie, 419 _____________ _______
U.S. 544, 557 (1975)). The tribes generally retain the right
to self-government, id. at 322, but are nonetheless subject ___
to federal criminal jurisdiction of both a specified and more
general nature. See generally United States v. Markiewicz, _____________ ______________ __________
____________________
17. Our reversal of the convictions for violating section
1343, supra, does not resolve the challenge here, which is _____
based upon the distinct theory of scheming to "deprive
another of the intangible right to honest services." 18
U.S.C. 1346.
-32- 32
978 F.2d 786, 797-802 (2d Cir. 1992) (discussing federal
criminal jurisdiction over offenses committed by or against
an Indian or on Indian territory, as well as over "peculiarly
Federal" offenses), cert. denied, 506 U.S. 1086 (1993). ____________
The statutory violations charged under 18 U.S.C.
1343 and 1346 are not specific to Native Americans, but
rather are of general applicability. Cf. Wheeler, 435 U.S. ___ _______
at 330 n.30 ("Federal jurisdiction also extends to . . .
crimes over which there is federal jurisdiction regardless of
whether an Indian is involved, such as assaulting a federal
officer, 18 U.S.C. 111 (1976 ed.)."). The latter crimes
may involve "an independent federal interest to be
protected," id. at 331 n.32, though it is unclear that one is ___
required. Compare Markiewicz, 978 F.2d at 800, with United _______ __________ ____ ______
States v. Begley, 42 F.3d 486, 500 (9th Cir. 1994) (a Native ______ ______
American may be charged under a federal criminal statute of
general applicability even absent a peculiarly federal
interest, if charge is unaffected by federal enclave law and
Native Americans have not been excluded from the statute's
application), cert. denied, 116 S. Ct. 93 (1995). Wire fraud ____________
appears to belong to this category of general offenses that
apply equally to Native Americans; even if an independent
federal interest is required to support this application of
the statute, the interest is to prevent use of the wires in
interstate or foreign commerce in furtherance of a scheme to
-33- 33
defraud. Cf. H.R.Rep. No. 94-1038, 94th Cong., 2d Sess. 3 ___
(1976), reprinted in 1976 U.S.C.C.A.N. 1125, 1127 (noting in ____________
legislative history of the Indian Major Crimes Act [18 U.S.C.
1153], which prescribes federal jurisdiction over 13
specified offenses, that federal criminal jurisdiction also
extends to "crimes that are peculiarly Federal. . . . such as
assaulting a federal officer . . . or defrauding the United
States"); see also United States v. Funmaker, 10 F.3d 1327, ________ _____________ ________
1331 (7th Cir. 1993) (18 U.S.C. 844(i), punishing one who
destroys by fire property used in or affecting interstate
commerce, extends to a Native American who set fire to tribe-
owned gambling hall); United States v. Finn, No. CRIM. 5-95- _____________ ____
12(01), -12(02), -12(03), 1995 WL 783305 at *16-*22 (D. Minn.
Oct. 12, 1995) (denying motion to dismiss for lack of
jurisdiction an indictment charging officers of tribal
corporation with mail fraud in violation of 18 U.S.C. 1341
and 1346 and other offenses).
As discussed earlier, the United States has an
interest in preventing use of the wires in interstate
commerce to further a scheme to defraud, including one to
"deprive another of the intangible right to honest services"
under section 1346. Defendant has not shown, and we do not
discern, how the application of sections 1343 and 1346 in
this case would interfere with any Native American right
protected by statute or treaty, or right integral to self-
-34- 34
government.18 Cf. Funmaker, 10 F.3d at 1332 ("The ___ ________
decision-making power of Indian tribes ends . . . at the
point when those decisions would violate federal law designed
to safeguard important federal interests such as the free
flow of interstate commerce."). The convictions for
violations of section 1346, in conjunction with section 1343,
are affirmed.
D. Jury Instruction on Good Faith Defense D. Jury Instruction on Good Faith Defense
Defendants challenge the district court's refusal
to give a proposed instruction to acquit on wire fraud if the
jury found "that the defendant had a good faith belief that
his status as a Native American entitled him to freely pass
the United States-Canadian border without paying any form of
taxes on the goods he was carrying." The proposed
instruction would not have required the jury to find, as the
district court instructed instead, that their good faith
belief was "objectively reasonable." We need not decide the
challenge to the jury instruction, because the wire fraud
convictions based on the scheme to defraud Canadian
authorities of taxes and duties have been reversed.
____________________
18. While Congress has removed federal jurisdiction to
enforce certain federal statutes involving Indian-related
offenses in the State of Maine, wire fraud laws are not so
included. See 25 U.S.C. 1725(c) (removing federal criminal ___
jurisdiction over sections 1152 through 1156, 1160, 1161, and
1165 of Title 18).
-35- 35
True, charges under a second theory of wire fraud
(depriving citizens on the reservation of the honest services
of their police chief) have been affirmed. If refusing to
give the proposed instruction relating to aboriginal rights
were error, it might have infected the jury's assessment of
defendants' intent on these additional counts as well.
However, defendants' argument is grounded in the first theory
of wire fraud alone; they say that to the extent that this
case is about having the specific intent to violate Canadian
tax laws, it is analogous to certain federal tax offense
cases, in which an instruction that good faith must be
"objectively reasonable" is inappropriate. See Cheek v. ___ _____
United States, 498 U.S. 192, 203 (1991). Given our reversal ______________
of the tax-related charges, defendants' initially weak
contention is not even arguably tenable. In any case, the
district court went beyond the legal minimums in instructing
the jury that it could consider good faith as a defense. Cf. ___
Dockray, 943 F.2d at 155 ("[W]here the court properly _______
instructs the jury on the element of intent to defraud --
essentially the opposite of good faith -- a separate
instruction on good faith is not required.").
E. Sentencing of Boots E. Sentencing of Boots
Boots challenges his sentence, which, like Cook's
and Lazore's, was at the low end of the applicable guideline
sentencing range: 18 months imprisonment, to be followed by
-36- 36
two years of supervised release.19 Mandatory special
assessments were imposed. Boots raises four sentencing
issues.
1. Downward Departure 1. Downward Departure
Boots contends first that the district court erred
in refusing to grant a downward departure. He acknowledges
the general rule that jurisdiction does not lie for appeals
from a district court's discretionary decision not to depart
downward. See United States v. Tardiff, 969 F.2d 1283, 1290 ___ _____________ _______
(1st Cir. 1992). However, he seeks to fit within the
exception for a refusal to depart based upon a court's
"misapprehension of the rules governing departures." United ______
States v. Gifford, 17 F.3d 462, 473 (1st Cir. 1994). ______ _______
The exception is a narrow one, and is not met here.
A review of the sentencing transcript reveals that the
district court judge was well aware of the applicable case
law, believed he had authority to depart downward, and
declined to do so after carefully weighing the arguments
presented. His discretionary judgment that the case did not
involve such unusual circumstances to justify taking it
____________________
19. The guideline range was determined as follows: a base
offense level of 6 pursuant to U.S.S.G. 2F1.1(a),
3D1.2(d), and 3D1.3(b); a seven-level increase for a loss
between $120,000 and $200,000 pursuant to 2F1.1(b)(1)(H);
and a two-level increase for an offense involving more than
minimal planning pursuant to 2F1.1(b)(2)(A), for a total
offense level of 15. With a criminal history category of I,
the applicable range was 18 to 24 months.
-37- 37
"outside the Guidelines' 'heartland,'" United States v. ______________
Rivera, 994 F.2d 942, 949 (1st Cir. 1993), was not skewed by ______
legal errors such as Gifford describes. It is therefore _______
unreviewable.
2. Acceptance of Responsibility 2. Acceptance of Responsibility
Boots claims that the district court erred in
refusing to grant him a two-point reduction for acceptance of
responsibility for his offenses pursuant to U.S.S.G.
3E1.1(a). He says that at trial he did not contest the
factual basis for the charges, but challenged only the
jurisdictional bases, and should not be punished for
exercising his constitutional right to a trial.
We review for clear error the district court's
decision that Boots did not "clearly demonstrate[] acceptance
of responsibility" for his offense. U.S.S.G. 3E1.1(a); see ___
also United States v. Lombard, 72 F.3d 170, 187 (1st Cir. ____ _____________ _______
1995). The district court declined to grant a reduction in
part because it believed that if defendant had been solely
concerned with jurisdictional issues relating to his Native
American status, he could have entered a conditional guilty
plea and preserved the issue for appeal rather than going to
trial. The court also considered the fact that defendants
defended against the bribery aspect of the case, insisting
that the payments they offered Moore were not bribery but
rather were salary for a business partner.
-38- 38
A district court's determination of whether such a
reduction is warranted deserves "great deference." U.S.S.G.
3E1.1 comment. (n.5). We see no abuse of discretion here.
Cf. United States v. Crass, 50 F.3d 81, 84 (1995) ("intent, ___ _____________ _____ ______
like any other essential element of the crime charged, may
not be contested by the defendant without jeopardizing a
downward adjustment for 'acceptance of responsibility'");
United States v. Springs, 17 F.3d 192, 196 (7th Cir.) (noting _____________ _______
that defendant who entered conditional guilty plea "was able
to retain the right to challenge the voluntariness of his
confessions, and he still received the maximum possible
acceptance-of-responsibility reduction"), cert. denied, 115 _____________
S. Ct. 375 (1994).
3. More Than Minimal Planning 3. More Than Minimal Planning
Boots challenges the two-level increase imposed
pursuant to U.S.S.G. 2F1.1(b)(2) for offenses involving
more than minimal planning. The Guidelines state that this
increase applies where repeated acts are carried out over a
period of time provided they were not "purely opportune," as
well as where steps are taken to conceal the offense. See ___
U.S.S.G. 1B1.1 comment. (n.1(f)), 2F1.1(b)(2) comment.
(n.2). The sentencing transcript reflects that the district
court judge imposed this increase after considering the
evidence of multiple acts taken by defendants over a several
month period. Among the acts specifically noted was the
-39- 39
bribery of Police Chief Moore, a concealed activity in which
defendants directly participated in the spring of 1992.
While the district court may reconsider this issue upon
remand for resentencing in light of our reversal of the wire
fraud and conspiracy convictions, it was not clear error to
impose the increase.
4. Amount of Loss 4. Amount of Loss
Boots claims that insufficient evidence supported
the district court's calculation of the amount of loss
(between $120,000 and $200,000), which resulted in a seven-
level increase to defendants' sentences. The range was
determined based on testimony at trial and sentencing as to
the quantity of tobacco transported into Canada and the
corresponding duties and taxes owed. Our reversal of the
wire fraud count involving tobacco smuggling, and our
vacating of the conspiracy count, require a remand for
resentencing, at which time the district court may reconsider
the entire question of loss calculations, including the
instant issue. We see no need to deal further with this
matter now.
We have considered defendants' other arguments and
find them to be without merit. The convictions for
violations of 18 U.S.C. 1346 (wire fraud intended to
deprive residents of honest services of their police chief)
and 1952 (Travel Act) are affirmed. The violations of 18 ________
-40- 40
U.S.C. 1343 (wire fraud relative to Canadian duties and
taxes) are reversed. The violation of 18 U.S.C. 371 ________
(conspiracy) is vacated and remanded for further proceedings _______ ________
not inconsistent with this opinion. We also vacate the
sentences of all defendants and remand for resentencing
consistent with this opinion.
So ordered. __ ________
-41- 41