United States v. Darrell Chip Wadena

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 96-4141
___________

United States of America, *
* ORDER
Appellee, *
* Appeals from the United States
v. * District Court for the District
* of Minnesota.
Darrell Chip Wadena, *
*
Appellant. *
___________

No. 96-4145
___________

United States of America, *
*
Appellee, *
*
v. *
*
Jerry Joseph Rawley, Jr., *
*
Appellant. *
 ___________

96-4146
___________

United States of America, *
*
Appellee, *
*
v. *
*
Rick Clark, *
*
Appellant. *
___________

Filed: August 11, 1998
___________

Before McMILLIAN, LAY, and BEAM, Circuit Judges.
___________

The opinion of this court filed on June 10, 1998, is hereby withdrawn and the
amended opinion is substituted in its place. The opinion is amended in Part IV, G
relating to the sentences of Rick Clark and Darrell Chip Wadena.

IT IS SO ORDERED.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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 United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 96-4141
___________

United States of America, *
* AMENDED OPINION
Appellee, *
* Appeals from the United States
v. * District Court for the District
* of Minnesota.
Darrell Chip Wadena, *
*
Appellant. *
___________

No. 96-4145
___________

United States of America, *
*
Appellee, *
*
v. *
*
Jerry Joseph Rawley, Jr., *
*
Appellant. *
 ___________

96-4146
___________

United States of America, *
*
Appellee, *
*
v. *
*
Rick Clark, *
*
Appellant. *
___________

Submitted: October 20, 1997
Filed: August 11, 1998
___________

Before McMILLIAN, LAY, and BEAM, Circuit Judges.
___________

LAY, Circuit Judge.

In June 1996, Rickie Lee Clark, Jerry Joseph Rawley, Jr., and Darrell “Chip”
Wadena were convicted in federal district court of conspiracy, in violation of 18 U.S.C.
§ 371, theft or bribery concerning programs receiving federal funds, in violation of 18
U.S.C. § 666, engaging in monetary transactions in property derived from specified
unlawful activity, in violation of 18 U.S.C. §§ 1957 and 2, and willful misapplication
of tribal funds, in violation of 18 U.S.C. § 1163. In addition, Clark and Rawley were

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convicted of mail fraud, in violation of 18 U.S.C. §§ 1341 and 2, and conspiracy to
oppress free exercise of election rights, in violation of 18 U.S.C. § 241.1

Clark, Rawley, and Wadena appeal their convictions. On appeal, they jointly
and severally challenge the federal court’s jurisdiction to prosecute the charges against
them. They also raise several trial and procedural errors. For the reasons discussed
below, we affirm all judgments of conviction.

I. Background

The 880,000-acre White Earth Reservation (“Reservation”) is located in
northwest Minnesota. The Reservation is home to the White Earth Band (“Band”), one
of the six constituent bands of the Minnesota Chippewa Tribe. The Band consists of
22,000 members. Approximately 3,800 of the Band’s enrolled members live on the
Reservation, and the remaining members live throughout the United States. The
Reservation Tribal Council (“RTC”) (formerly known as the Reservation Business
Committee) governs all aspects of the Band, including its economic activity.2

The RTC consists of five members who serve four-year terms. The Band elects
the members by general elections held every two years. To be eligible for election, a
candidate must be an enrolled member who resides on the Reservation. During the
time frame relevant to this case, Clark, Rawley, and Wadena all served on the RTC.

1
Wadena received a sentence of 51 months in prison, Clark received a sentence
of 46 months in prison, and Rawley received a sentence of 37 months in prison. Each
defendant was also ordered to pay restitution, fines, and a special assessment.
2
For example, in the time period relevant to this case, the RTC controlled the
distribution of assistance funds for Band members, made housing loans to various
members, and conducted economic development projects.

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Wadena served as Chairman, Rawley served as Treasurer, and Clark served as
Councilman.

The offenses for which Clark and Rawley were convicted arose from three
conspiracies: 1) the construction conspiracy; 2) the commissions conspiracy; and 3)
the election conspiracy. Wadena’s convictions arose solely from the construction
conspiracy and the commissions conspiracy. We detail these conspiracies below.

A. The Construction Conspiracy

In 1985, Congress enacted the White Earth Reservation Land Settlement Act
(“WERLSA”). 25 U.S.C. § 331. The purpose of the WERLSA was to settle numerous
claims involving large portions of land on the Reservation. Id. As part of the Act, the
United States appropriated $6.6 million “for economic development for the benefit of
the White Earth Band of Chippewa Indians.” Id. In 1991, the RTC authorized the use
of approximately $5 million of this money for construction of a casino on the
Reservation called the Shooting Star Casino (“Casino”). The Casino project involved
approximately $24 million.

The RTC appointed Clark to oversee construction of the Casino.3 The RTC also
hired Indian-owned Gordon Construction, Inc. (“Gordon”) to act as general contractor
for the project. Gordon subcontracted with Northern Drywall and Construction, Inc.
(“Northern”) for installation of drywall and various painting services. Northern did not
submit a formal bid for the subcontract. Prior to the subcontract in question, Northern
had only worked on small construction projects, and in the years prior to the Casino

3
Initially, the RTC appointed Jim Foster, the Band’s Executive Director, to
oversee the Casino construction on behalf of the RTC. Clark eventually replaced
Foster.

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project, Northern's gross revenues never exceeded $50,000. Clark owned Northern, and
he served as its president.

Construction of the Casino began in mid-1991 and was completed within one
year. The Casino was quite successful; it created more than 1000 jobs and generated
millions of dollars in revenue. In 1993, for example, the Band grossed $50 million, a
majority of which came from the operation of the Casino. The RTC had control over the
Band’s spending of all non-federal revenue such as the revenue from the Casino.

In 1993, the civil examination unit of the Internal Revenue Service (“IRS”)
conducted an audit of Northern. During the audit, examiner Greg Nygren discovered
Northern had made payments to Wadena totaling over $428,000. Northern made the
first payment to Wadena in July 1991, about four months before the drywall subcontract
was publicized. In response to inquiries about the payments, Clark and Wadena claimed
Wadena held an undisclosed ownership interest in Northern, and the payments
represented Wadena’s share of profits from Northern. However, Wadena never
mentioned this alleged ownership interest on his 1990 financial statements or on loan
applications he submitted in 1990. Further, Northern’s accountant did not know of
Wadena’s alleged interest. Later, Clark falsified and backdated Northern’s corporate
minutes and stock certificates in an attempt to document Wadena’s ownership interest
in the company.

In 1992, Northern also made a payment to Rawley in the amount of $15,000.
Clark and Rawley claimed the payment was for consulting services. In reality, Northern
made the payment to Rawley to secure Rawley’s silence about Northern’s payments to
Wadena, who was Rawley’s long-time political rival.

The government indicted Clark, Rawley, and Wadena on August 29, 1995. The
Indictment charged defendants with eighteen counts arising from the construction of the
Casino. Count 1 alleged that all three defendants conspired to misapply tribal funds,

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in violation of 18 U.S.C. §§ 371, 666, and 1163. The object of the conspiracy was to
use tribal funds for personal gain in the construction of the Casino. Counts 2 through 18
alleged the defendants engaged in various acts of money laundering and misapplication
of funds in furtherance of the conspiracy.4 The jury convicted Clark, Rawley, and
Wadena of all counts related to the construction conspiracy.

B. The Commissions Conspiracy

The RTC members created two commissions of which they were the sole
members: the Gaming Control Commission and the Fishing Commission
(“Commissions”). The RTC members assumed no additional duties by serving on the
Commissions, and the Commissions themselves were essentially functionless.5
Nonetheless, Clark, Rawley, and Wadena received substantial payments for their

4
Count 2 charged Clark with making the $15,000 payment to Rawley, in
violation of 18 U.S.C. § 666(a)(2). Count 3 charged Rawley with accepting that
payment, in violation of 18 U.S.C. § 666(a)(1)(B). Count 4 charged Clark and Rawley
with money laundering and acting as principals for money laundering, in violation of
18 U.S.C. §§ 1957 and 2. Count 5 charged Wadena with accepting stock from
Northern, in violation of 18 U.S.C. § 666(a)(1)(B). Count 6 charged Clark with giving
Wadena Northern stock, in violation of 18 U.S.C. § 666(a)(2). Count 7 charged
Wadena with accepting $428,682.50 in payments from Clark, in violation of 18 U.S.C.
§ 666(a)(1)(B). Count 8 charged Clark with giving Wadena $428,682.50 in payments,
in violation of 18 U.S.C. § 666(a)(2). Count 9 charged Clark with using the mail to
procure phony bids for the Casino, in violation of 18 U.S.C. § 1341. Counts 10
through 18 charged Wadena and Clark with money laundering and acting as principals
for money laundering, in violation of 18 U.S.C. §§ 1957 and 2.
5
Wadena states “the purpose for creating a fishing commission was to formalize
the new tax exemption for income generated in relation to fishing-treaty rights.” See
Wadena Br. at 5. The payments Clark, Rawley, and Wadena received from the Fishing
Commission were tax exempt.

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service on the Commissions.6 At irregular intervals, and when the desire arose, Clark,
Rawley, and Wadena directed the issuance of tribal funds to themselves, and they
directed the Band’s accounting department to code the checks as payment for
commission meetings. These payments were made from the Band’s general treasury,
and when combined with Clark’s, Rawley’s and Wadena’s RTC salaries for the years
1990 to 1993, the payments amounted to over $1.2 million.

In the 1995 Indictment, the government charged Clark, Rawley, and Wadena with
ten counts arising from the Commissions conspiracy. Count 19 alleged the defendants
conspired to misapply tribal funds, in violation of 18 U.S.C. §§ 371 and 1163. The
object of this conspiracy was to obtain tribal funds in the form of excessive commission
payments. Counts 20 through 28 alleged various acts of misapplication of tribal funds,
theft or bribery concerning programs receiving federal funds, and money laundering.7
The jury convicted Clark and Wadena of all counts relating to the

6
These payments were in addition to the salaries Clark, Rawley, and Wadena
received for service on the RTC. In 1993, Wadena’s RTC salary was $144,000,
Clark’s RTC salary was $122,000 and Rawley’s RTC salary was $102,000. The
government did not allege or charge that these salaries constituted a misappropriation
of tribal funds.
7
Count 20 charged Rawley with misapplying tribal funds for the purchase of an
all-terrain vehicle and a snow plow, in violation of 18 U.S.C. § 1163. Count 21
charged Clark with misapplying tribal funds for the purchase of a snowmobile, in
violation of 18 U.S.C. § 1163. Count 22 charged Wadena with misapplying tribal
funds for a payment on a car loan, in violation of 18 U.S.C. § 1163. Count 23 charged
Rawley with misapplying $25,000 of tribal funds, in violation of 18 U.S.C. § 1163.
Count 24 charged Wadena with misapplying $56,705 of tribal funds, in violation of 18
U.S.C. § 1163. Count 25 charged Clark with misapplying $54,500 of tribal funds, in
violation of 18 U.S.C. § 1163. Count 26 charged Rawley with misapplying $31,000
of tribal funds, in violation of 18 U.S.C. § 1163. Count 27 charged Rawley with
obtaining tribal funds by fraud and intentionally misapplying those funds, in violation
of 18 U.S.C. § 666. Count 28 charged Rawley with money laundering, in violation of
18 U.S.C. § 1957.

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Commissions conspiracy. The jury convicted Rawley of all counts except for one count
of misapplying tribal funds.

C. The Election Conspiracy

In addition to the convictions set forth above, Rawley and Clark were also found
guilty under 18 U.S.C. § 241 for conspiracy to oppress free exercise of tribal election
rights. As noted above, the RTC members are elected every two years. Because most
of the Band’s members do not live on the Reservation, the majority of members vote by
absentee ballot. The Minnesota Chippewa Tribe prescribes absentee ballot voting
procedures for its constituent tribes. During the time frame relevant to this case, these
procedures provided that a person who wished to vote by absentee ballot would first
request a ballot from the Band’s authorities. The voter would then complete the ballot
and place it in an envelope upon which was printed an affidavit the voter signed and had
notarized. The voter would then send the ballot directly to election headquarters where
it would be tallied. During the 1994 election, numerous absentee ballots were fabricated
and falsely notarized. Both Clark and Rawley had a hand in improperly notarizing
absentee ballots, and Clark himself forged numerous ballots. The government
emphasizes that Clark and Rawley used the United States mail as well as notaries
licensed by the State of Minnesota to perpetuate the absentee ballot fraud.

In the 1995 Indictment, the government charged Clark and Rawley with sixteen
counts relating to the election conspiracy. The government did not charge Wadena with
any counts relating to the election conspiracy. Count 29 alleged that Clark and

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Rawley conspired to injure and oppress voters, in violation of 18 U.S.C. § 241.8 Section
241 makes it unlawful for

two or more persons [to] conspire to injure, oppress, threaten, or intimidate
any person in any State [or] Territory . . . in the free exercise or enjoyment
of any right or privilege secured to him [or her] by the Constitution or laws
of the United States, or because of his [or her] having so exercised the
same. . . .

The object of this conspiracy was to procure the election of certain candidates to tribal
positions by causing election officials to corruptly discharge their duties and by causing
fraudulent ballots to be cast. Counts 30 through 44 alleged various acts of
misapplication of funds, mail fraud, false statements, and obstruction of justice.9 The
jury convicted Rawley of all counts relating to the election conspiracy. The jury
convicted Clark of all counts relating to the election conspiracy except for one count of
using tribal funds to pay people to assist him and others in gaining re-election.

II. Overall Jurisdiction

8
Count 29 also named tribal election judge Carley Jasken, notary Peter Pequette,
Jr., and notary Henry Harper. The jury acquitted Jasken of all charges. Pequette
cooperated with and testified on behalf of the government. Harper pleaded guilty to
making a false writing, in violation of 18 U.S.C. § 1001.
9
Count 30 charged Clark with using tribal funds to pay people to assist him and
others in gaining re-election, in violation of 18 U.S.C. § 1163. Count 31 charged
Rawley with using tribal funds to pay people to assist him in gaining re-election, in
violation of 18 U.S.C. § 1163. Counts 32 to 41 charged Clark and Rawley with using
the mails to defraud voters, and acting as principals in that mail fraud, in violation of
18 U.S.C. §§ 1341 and 2. Counts 42 to 44 charged Harper, Pequette, and Jasken with
various violations.

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 Each defendant challenges his convictions on various grounds. First, we address
the defendants’ overall challenge of the federal court’s jurisdiction to prosecute them for
the charged offenses. The defendants make two basic challenges: (1) the only federal
law applicable to the defendants, as Native Americans, are those encompassed within
the Indian Country Crimes Act, 18 U.S.C. § 1152, and the Indian Major Crimes Act, 18
U.S.C. § 1153; (2) alternatively, the defendants urge, even if general federal criminal
laws do apply to them, Public Law 280 (codified at 18 U.S.C. § 1162) granted
Minnesota state courts exclusive jurisdiction over crimes involving Indians and arising
in Indian country.

The defendants’ first jurisdictional challenge is broad-based and if true, would
require this court to dismiss all charges. This particular jurisdictional claim is allegedly
derived from historic interpretation of the “patchwork” of federal statutes and early case
law affecting the sovereignty of Indian tribes in America. This area of the law is not
easily discerned and has arisen in numerous cases both in this court and other circuit
courts of appeal.10

The general laws of the United States were made applicable to Indian Country
through the Indian Country Crimes Act, 18 U.S.C. § 1152.11 The second paragraph of

10
See, e.g., United States v. Smith, 562 F.2d 453, 455-58 (7th Cir. 1977);. United
States v. Begay, 42 F.3d 486, 497-500 (9th Cir. 1994); United States v. Markiewicz,
978 F.2d 786, 797-803 (2d Cir. 1992); United States v. Blue, 722 F.2d 383, 384-86
(8th Cir. 1983).
11
Section 1152 provides:

Except as otherwise expressly provided by law, the general
laws of the United States as to the punishment of offenses
committed in any place within the sole and exclusive
jurisdiction of the United States, except the District of
Columbia, shall extend to the Indian country.

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the Act contains an exception to this jurisdictional grant for any crime committed by one
Indian against another. As early as 1883, the Supreme Court in Ex Parte Crow Dog, 109
U.S. 556 (1883), applied this exception and dismissed a federal prosecution for murder
of one Indian by another. In 1885, in order to curb a perceived lawlessness resulting
from the Crow Dog decision, Congress passed the Indian Major Crimes Act, 18 U.S.C.
§ 1153, which provides the federal courts with exclusive jurisdiction over certain
enumerated crimes.12

This section shall not extend to offenses committed by one
Indian against the person or property of another Indian, nor
to any Indian committing any offense in the Indian country
who has been punished by the local law of the tribe, or to
any case where, by treaty stipulations, the exclusive
jurisdiction over such offenses is or may be secured to the
Indian tribes respectively.

This Act is sometimes referred to as the General Crimes Act. See United States v.
Wheeler, 435 U.S. 313, 324 (1978).
12
Section 1153 provides:

(a) Any Indian who commits against the person or
property of another Indian or other person any of the
following offenses, namely, murder, manslaughter,
kidnapping, maiming, a felony under chapter 109A, incest,
assault with intent to commit murder, assault with a
dangerous weapon, assault resulting in serious bodily injury
(as defined in section 1365 of this title), an assault against
an individual who has not attained the age of 16 years,
arson, burglary, robbery, and a felony under section 661 of
this title within the Indian country, shall be subject to the
same law and penalties as all other persons committing any
of the above offenses, within the exclusive jurisdiction of the
United States.

(b) Any offense referred to in subsection (a) of this

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 The Indian Major Crimes Act allowed for federal prosecution of certain
enumerated crimes, and today, the federal government has jurisdiction over fourteen
major crimes when they are committed on an Indian reservation. The Indian Major
Crimes Act does not contain an Indian-against-Indian exception. Nonetheless, the
defendants argue that as a result of the Indian Major Crimes Act, the federal government
no longer has jurisdiction under § 1152 to prosecute crimes perpetrated by one Indian
against another, unless the crime is one enumerated in § 1153.13 In support of this
argument, the defendants cite United States v. Quiver, 241 U.S. 602 (1916), wherein the
Supreme Court observed that the inclusion of certain offenses within the Indian Major
Crimes Act “carries with it some implication of a purpose to exclude others.” 241 U.S.
at 606.

In sum, the defendants argue that the only crimes which may be the basis for
federal court jurisdiction are those within the Indian Country Crimes Act and the Indian
Major Crimes Act. As the defendants acknowledge, this court has rejected this claim
on several occasions. See, e.g., Blue, 722 F.2d at 384-86; Stone v. United States, 506

section that is not defined and punished by Federal law in
force within the exclusive jurisdiction of the United States
shall be defined and punished in accordance with the laws
of the State in which such offense was committed as are in
force at the time of such offense.

As will be discussed infra, jurisdiction over the crimes enumerated in the Indian Major
Crimes Act has now been delegated to certain states pursuant to Public Law 280.
13
Although not relevant here, such argument must acknowledge that in states not
covered by Public Law 280, the federal government could still prosecute Native
Americans under the Assimilative Crimes Act, 18 U.S.C. § 13, by utilizing state law
where no comparable federal law exists. Cf. United States v. Butler, 541 F.2d 730 (8th
Cir. 1976). However, under the Assimilative Crimes Act, the exception involving
Indian-against-Indian crimes would still apply. See, e.g., United States v. Thunder
Hawk, 127 F.3d 705, 706-08 (8th Cir. 1997).

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F.2d 561, 563 (8th Cir. 1974); United States v. White, 508 F.2d 453, 454-55 (8th Cir.
1974). We recognize that when addressing claims like the one made here, our court and
other courts of appeal have issued opinions that seem confusing and somewhat
inconsistent.14 However, there are several reasons why we believe our earlier precedent
controls.

First, many courts of appeal15 recognize that federal courts may enforce general
federal criminal laws against all persons, including Indians within Indian country.16

14
For example, in Blue, our court stated Ҥ 1152 and its exceptions do not extend
or restrict the application of general federal criminal statutes to Indian reservations.”
722 F.2d at 384. See also Stone, 506 F.2d at 563-64; White, 508 F.2d at 454-55. This
interpretation has also been made in numerous Ninth Circuit cases, most recently in
Begay, 42 F.3d at 498 (Sections 1152 and 1153 “deal[] only with the application of
federal enclave law to Indians and [have] no bearing on federal laws of nationwide
applicability that make actions criminal wherever committed.”).

In contrast, the Fourth Circuit, in United States v. Welch, 822 F.2d 460, 464 (4th
Cir. 1987), reversed a conviction under the Assimilative Crimes Act, holding that
“[w]hen there is a crime by an Indian against another Indian within Indian country only
those offenses enumerated in the Major Crimes Act may be tried in the federal courts.”
In Markiewicz, the Second Circuit cited this decision with approval, stating that this
“alternative approach . . . is more deferential to the Supreme Court’s determination in
Quiver that congress’s inclusion of certain crimes in the major crimes act ‘carries with
it some implication of a purpose to exclude other[]’ crimes.” 978 F.2d at 799, (quoting
Quiver, 241 U.S. at 606).
15
See United States v. Stone, 112 F.3d 971, 973 (8th Cir. 1997); Blue, 722 F.2d
at 384; Stone, 506 F.2d at 563-64; White, 508 F.2d at 454-55; see also United States
v. Yannott, 42 F.3d 999, 1003-04 (6th Cir. 1994); Begay, 42 F.3d at 498; United States
v. Young, 936 F.2d 1050, 1055 (9th Cir. 1991); United States v. Burns, 529 F.2d 114,
117 (9th Cir. 1975).
16
See Felix S. Cohen, Felix S. Cohen’s Handbook of Federal Indian Law 283
(Rennard Strickland et al. eds., 1982) (“Where retained tribal sovereignty in Indian

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Federal statutes of general applicability, those in which situs of the offense is not an
element of the crime, are not encompassed within the Indian Country Crimes Act. As
a result, the Indian-against-Indian exception contained in the Indian Country Crimes Act
does not apply to federal criminal laws of general applicability.

The Second Circuit in Markiewicz, 978 F.2d 786, and the Seventh Circuit in
Smith, 562 F.2d 453, emphasized that only federal laws which seek to protect a
“peculiar” federal interest may be prosecuted.17 For example, in Smith, the offense was
charged under 18 U.S.C. § 111 for forcible assault on a federal officer. The Smith court
found that the district court had concurrent jurisdiction with the tribal court, because of
the “peculiarly Federal nature” of the assault. 562 F.2d at 458. However, this
distinction actually is difficult to apply, given the presumption of jurisdictional authority
of Congress to pass federal laws. If Congress passes any federal act, assuming it has
constitutional authority to do so, there always exists a federal concern and interest. For
this reason, identifying a federal interest in a general federal law in order to override
tribal sovereignty seemingly is redundant.

At the time that the Indian Country Crimes Act was passed, it may have been
assumed, as Felix Cohen points out, that federal laws outside of enclave laws were not

country is not invaded and no other particular Indian right is infringed, individual
Indians and their property are normally subject to the same federal laws as other
persons.”); Wheeler, 435 U.S. at 330 n.30 (“Federal jurisdiction also extends to crimes
committed by an Indian against a non-Indian which have not been punished in tribal
court . . . and to crimes over which there is federal jurisdiction regardless of whether
an Indian is involved, such as assaulting a federal officer.”)
17
Those courts reasoned that deference to tribal authority and sovereignty should
allow tribal laws to deal with relations among the members of the tribe. Cf. Quiver,
241 U.S. at 603-04 (It is settled policy of Congress “to permit the personal and
domestic relations of the Indians with each other to be regulated, and offenses by one
Indian against the person or property of another Indian to be dealt with, according to
their tribal customs and laws.”).

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applicable to the Indian Country. See Cohen, supra, at 296-97. However, as Indian law
evolved, that premise was discarded. General federal criminal laws directed to all
persons became recognized as applying equally to Native Americans within Indian
Country. See Federal Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 116-17
(1960); Cohen, supra, at 284-85.

Moreover, the Indian Country Crimes Act speaks only to the “general laws of the
United States as to the punishment of offenses committed in any place within the sole
and exclusive jurisdiction of the United States. . . .” 18 U.S.C. § 1152 (emphasis
added). Because situs of the offense is not an element of any of the statutory violations
committed by the defendants, none of the defendants claim the crimes for which they
were convicted were enclave laws. Thus, because the offenses do not fall within the
Indian Country Crimes Act, they are not subject to the Act’s exception relating to crimes
committed in Indian Country by one Indian against another.18

18
Defendants rely upon Quiver, 241 U.S. 602, as authority to exempt prosecution
on the theory that all of the offenses charged fall within the exclusive jurisdiction of the
tribe’s sovereignty because they relate to internal relations of the members of the tribe.
The defendants urge that Quiver applied the exception under the Indian Country Crimes
Act to a general federal law of adultery. Our research is to the contrary. The adultery
statute applied was derived from the Act of March 3, 1887, ch. 397, 24 Stat. 635,
which was directed toward the Territory of Utah. The law was later codified under
“Certain Offenses in the Territories,” ch. 13, § 316, 7 Fed. Stat. 968 (1916). Section
311 of the chapter states:

[Places within which sections of this chapter shall apply.] Except as
otherwise expressly provided, the offenses defined in this chapter shall be
punished as hereinafter provided, when committed within any Territory
or District, or within or upon any place within the exclusive jurisdiction
of the United States.

In other words, § 316 was an enclave statute, applying only to federally
controlled territory. Clearly Congress would have no authority to pass a general law,

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 The Indian-against-Indian exception contained in the Indian Country Crimes Act
manifested, as Cohen observes, “a broad respect for tribal sovereignty, particularly in
matters affecting only Indians.” Cohen, supra, at 290 (citing Quiver, 241 U.S. 602, and
Crow Dog, 109 U.S. 556). However, the application of general federal laws to Native
Americans in this case does not implicate the tribal concerns of sovereignty addressed
by the Indian Country Crimes Act exception. There may be other federal-law
prosecutions that would implicate important tribal interests. However, we fail to see
how tribal interests are paramount to the federal interests implicated in the various
criminal charges involved here. Although the defendants are Native Americans, and
their conduct took place within Indian country, tribal interests do not outweigh the
federal interest in prohibiting offenses such as mail fraud, money laundering, bribery, and
conspiracy. Moreover, Indian tribes are not totally independent of the United States.
Federal jurisdiction over the offenses committed here is imperative for the protection of
all Native Americans who are U.S. citizens living on Indian reservations.

Public Law 280

The alternative jurisdictional argument raised by the defendants may be summarily
rejected. Defendants assert that even if general federal laws are applicable, under Public
Law 280, the federal government has surrendered to the State of Minnesota its criminal
jurisdiction over all federal offenses committed on Indian lands. As the defendants
acknowledge, this court has rejected this exact argument in two recent cases: Stone, 112
F.3d 971, and United States v. Pemberton, 121 F.3d 1157 (8th Cir. 1997), cert. denied,
___ U.S. ____, 118 S. Ct. 1046 (1998). As this court observed in Pemberton: “Crimes
of general applicability—that is, actions that Congress has declared illegal regardless of
where they occur—are not affected by the enactment of Public Law 280 and remain
within the subject-matter jurisdiction of the federal courts.” 121 F.3d at 1164.

such as one prohibiting adultery, outside a federal enclave.

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 III. Jurisdictional Challenge to the Election Conspiracy

Clark and Rawley do not challenge the sufficiency of the evidence to sustain their
convictions relating to the election fraud, and the evidence of their guilt is overwhelming.
However, both Clark and Rawley vigorously assert that the exercise of federal criminal
jurisdiction over the conspiracy to commit election fraud is not authorized by Congress
and seriously impinges upon tribal sovereignty. As such, they urge the election was
within the exclusive jurisdiction of the Tribal Court. They conclude that under the
principles enumerated in Quiver and Crow Dog, federal courts lack jurisdiction over
matters such as tribal elections that relate to the internal affairs of the tribe.

The district court held that the conspiracy law under § 241 is a law of general
applicability because the situs of the offense—in this case, voter fraud—is in no way an
element of the crime. In other words, the district court’s rationale was that Congress has
declared any conspiracy which violates federally protected rights a crime regardless of
where the offense occurs. And, as we have previously discussed, laws of general
applicability “apply” with equal force when committed by a Native American on a
reservation. See Part II, supra.

Clark and Rawley also challenge federal jurisdiction on the ground that the tribe
exists as an independent nation over which the federal government has no jurisdiction
concerning a local tribal election. There is no question that Indian tribes are quasi-
sovereigns and enjoy rights and privileges of self-government and local culture.
However, the Supreme Court observed early on in Talton v. Mayes that while Indian
Nations are "possessed of . . . attributes of local self government, when exercising their
tribal functions, all such rights are subject to the supreme legislative authority of the
United States.” 163 U.S. 376, 384 (1896) (citing Cherokee Nation v. Southern Kansas
Ry. Co., 135 U.S. 641 (1890)). In this regard, tribal sovereignty “exists only at the
sufferance of Congress and is subject to complete defeasance.” Wheeler, 435 U.S. at

-19-
323. The Supreme Court emphasized the dominance of congressional authority over
Indian tribes in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), observing: “As the
Court in Talton recognized . . . Congress has plenary authority to limit, modify or
eliminate the powers of local self-government which the tribes otherwise possess." 436
U.S. at 56 (also citing United States v. Kagama, 118 U.S. 375, 379-81, 383-84 (1886);
Cherokee Nation v. Hitchcock, 187 U.S. 294, 305-07 (1902)). The Santa Clara court
went on to emphasize that the passage of the Indian Civil Rights Act, 25 U.S.C. §§
1301-0319 (“ICRA”), serves as an example of that authority. The Court summed up this
legislation by observing: “In 25 U.S.C. § 1302, Congress acted to modify the effect of
Talton and its progeny by imposing certain restrictions upon tribal governments similar,
but not identical, to those contained in the Bill of Rights and the Fourteenth
Amendment.”20 436 U.S. at 57.

The ICRA was passed with the declared purpose “to secur[e] for the American
Indian the broad constitutional rights afforded to other Americans.” Santa Clara, 436
U.S. at 61 (quoting S. Rep. No. 841, 90th Cong. 1st Sess. 5-6 (1967)). The passage of
the ICRA resulted from congressional concern in the early 1960s that individual Native
Americans had no constitutional rights under their tribal governments. See Alvin J.
Ziontz, In Defense of Tribal Sovereignty: An Analysis of Judicial Error in Construction
of the Indian Civil Rights Act, 20 S.D. L. Rev. 1, 1-2 (1975). The congressional
subcommittee first considering the legislation “heard a great deal of

19
Section 1302(8) of the ICRA states in relevant part: “No Indian tribe in
exercising powers of self-government shall . . . deny to any person within its
jurisdiction the equal protection of its laws or deprive any person of liberty or property
without due process of law.” (emphasis added). As the Court in Santa Clara points
out, this is not deemed to explicitly identify with the Bill of Rights or the Fourteenth
Amendment of the U.S. Constitution. See 436 U.S. at 63 n.14.
20
In § 1302(8), Congress offered reassurance that no tribal government would
deny to any members the equal protection of the Tribe’s laws. Furthermore, the ICRA
does not include other constitutional freedoms, such as the prohibition as to the
establishment of religion, the right of counsel, etc. See 436 U.S. at 62-63.

-20-
testimony from Indians complaining of violations of constitutional rights by the
governing bodies of Indian tribes.” Id. at 2. These allegations included incidents such
as harassment and detention of political dissidents, corruption of tribal courts, and—
notably—election fraud. See Joseph de Raismes, The Indian Civil Rights Act of 1968
and the Pursuit of Responsible Tribal Self-Government, 20 S.D. L. Rev. 59, 73 (1975).
Most commentators agree that in enacting the ICRA, Congress “sought to achieve a
balance between individual rights of tribal members on the one hand and preservation
of tribal autonomy, Indian customs, law and culture on the other.” Ziontz, supra, at 2;
see also Cohen, supra, at 666-69. Initially, a bill was contemplated to impose the same
limitations on tribes as were imposed on the federal government in regard to civil rights.
Cohen, supra, at 666. The end result was an act with only some of those restrictions.
Id. From this reading of the legislative history, it is clear that Congress was sensitive to
the question of tribal sovereignty when drafting the ICRA.

Section 241 prohibits a conspiracy to deny any person the enjoyment of a right or
privilege secured by the Constitution or laws of the United States. It is the government’s
position that the conspiracy under § 241 was specifically directed to a law of the United
States, i.e., violation of § 1302 of the ICRA. Under this theory, we must first address
whether § 241 specifically applies to fraud in a tribal election.

Citing an eighty-year-old case, United States v. Bathgate, 246 U.S. 220, 225
(1918), the defendants argue that federal election fraud statutes do not extend to fraud
in a general state election, and therefore should not apply to a tribal election either. But
since the Bathgate decision, the Supreme Court has construed § 241 to include all rights
or privileges secured by the Constitution or laws of the United States. See United States
v. Guest, 383 U.S. 745, 753 (1966) (Section 241 protects equal protection rights under
the Fourteenth Amendment.). More specifically, the court in Anderson v. United States,
417 U.S. 211, 226 (1974) stated that “[t]he specific intent required under § 241 is not
the intent to change the outcome of a federal election, but rather the intent to have false
votes cast. . . .” Subsequent to Anderson, the application of § 241 to fraud in non-

-21-
federal elections has been endorsed by this circuit, as well as several others. See United
States v. Townsley, 843 F.2d 1070, 1080 (8th Cir.), vacated in part on other grounds,
856 F.2d 1189 (8th Cir. 1988); United States v. Howard, 774 F.2d 838, 841 (7th Cir.
1985); United States v. Stollings, 501 F.2d 954, 955 (4th Cir. 1974).

In Townsley, our court specifically held that even though the objective of the
conspiracy was to influence a local rather than federal election, that did not defeat the
specific intent necessary to establish a conspiracy against the rights of citizens under §
241. 843 F.2d at 1080. The court stated: “Regardless of what our view might have been
were we writing on a clean slate, it is now clear that ‘[t]he specific intent required under
§ 241 is not the intent to change the outcome of a federal election, but rather the intent
to have false votes cast . . . .’” Id. (quoting Anderson, 417 U.S. at 226). In this case,
Rawley and Clark were accused of conspiring to fraudulently cast ballots in a tribal
election. Under Anderson, as long as the purpose of the conspiracy was the violation
of a federal law, the conspiracy is unlawful under federal law. See 417 U.S. at 226.

The specific question we must then address is whether the ICRA, as a law of the
United States, contains a prohibition which allows enforcement of § 241 under general
principles of conspiracy law. The ICRA specifically proscribes a violation of the Tribe’s
equal protection laws, as well as other constitutional rights of the Tribe. See § 1302(8).
Article XIII of the Constitution of the Minnesota Chippewa Tribe reads:

All members of the Minnesota Chippewa Tribe shall be accorded by the
governing body equal rights, equal protection, and equal opportunities to
participate in the economic resources and activities of the Tribe, and no
member shall be denied any of the constitutional rights or guarantees
enjoyed by other citizens of the United States, including but not limited to
freedom of religion and conscience, freedom of speech, the right to orderly
association or assembly, the right to petition for action or the redress of
grievances, and due process of law.

-22-
(emphasis added). By direct incorporation, these rights are now explicitly protected by
the ICRA. We hold they are enforceable under § 241, as a general federal law.

In addressing ballot-box stuffing in federal or state elections, the Seventh Circuit
observed in United States v. Olinger, 759 F.2d 1293, 1303 (7th Cir. 1985):

[T]he right of suffrage, whether in an election for state or federal office, is
one that qualifies under the Equal Protection Clause of the Fourteenth
Amendment for protection from impairment, “when such impairment
resulted from dilution by a false tally, cf., United States v. Classic, 313
U.S. 299 (1941); or by a refusal to count votes from arbitrarily selected
precincts, cf., United States v. Mosley, 238 U.S. 383 (1915), or by a
stuffing of the ballot box, cf., Ex Parte Siebold, 100 U.S. 371 (1879);
United States v. Saylor, 322 U.S. 385 (1944).” Baker v. Carr, 369 U.S.
186, 208 and 247-48 (1962). This was bluntly stated in Reynolds v. Sims,
377 U.S. 533, 554-55 (1964): “[T]he Constitution of the United States
protects the right of all qualified citizens to vote, in state as well as in
federal elections. . . . The right to vote can neither be denied outright, . .
. nor diluted by ballotbox stuffing. . . .

We believe it is clear this protection against voter fraud has been carried over into the
ICRA, as it is applies to the facts of this case. This court previously recognized the one-
man-one-vote principle applies to tribal elections through the ICRA. See White Eagle
v. One Feather, 478 F.2d 1311, 1314 (8th Cir. 1973); Daly v. United States, 483 F.2d
700, 704-05 (8th Cir. 1973); Means v. Wilson, 522 F.2d 833, 839 (8th Cir. 1975).21

21
These cases are pre-Santa Clara, recognizing an implicit right to civil action
under the ICRA against tribal officers and tribal councils. Santa Clara rejected the
rights of tribal members to bring such civil suits in federal court, and also established
that tribal counsels enjoy sovereign immunity from suit. See infra. We cite these pre-
Santa Clara cases simply as a recognition of the one-man-one-vote principle included
in the ICRA.

-23-
 The defendants urge that these cases have all been implicitly overruled by the
Santa Clara decision. In Santa Clara, a female tribe member brought an action for
injunctive and declaratory relief against the Pueblo tribal government, alleging that a
Pueblo ordinance which denied tribal membership to children of female members who
married outside the tribe was a violation of equal protection under the ICRA. 436 U.S.
at 52-53. The Supreme Court found that suits against the tribe under the ICRA were
barred by the tribe’s sovereign immunity, because nothing on the face of the ICRA
purported to subject the tribes to the jurisdiction of federal courts in civil actions for
declaratory or injunctive relief. Id. at 58-59. Additionally, the Court found that the
ICRA did not impliedly authorize a private right of action against the Pueblo
government. Id. at 72.

There are several reasons why the Santa Clara ruling does not control this case.
First, in the case at hand, the government is asserting jurisdiction under § 241, not under
the ICRA. The only reason the ICRA needs to be referenced at all in this case is to
establish that a right to be free from fraud in a tribal election does indeed exist under the
laws of the United States. There is nothing in the language of Santa Clara to indicate
that the rights under the ICRA are nonexistent or in any way invalid. Instead, Santa
Clara dealt with how those rights may be enforced, and concluded they could not be
enforced through a private right of action, in a civil lawsuit. Nothing in Santa
Clara addresses the U.S. government’s right or obligation to assume criminal jurisdiction
when one of its laws of generally applicability is violated. Additionally, tribal immunity
is not at issue in the present criminal case.

Second, in Santa Clara the Court was faced with a challenge to a duly enacted
ordinance of the tribal government. In such a case, the threat to tribal sovereignty is
great because a federal court would be asked to sit in judgment of legislation enacted by
a legitimate tribal government. In this case, the question is whether jurisdiction can

-24-
be asserted over the illegitimate, criminal action of fraud in a tribal election. Unlike
Santa Clara, there is no challenge to the legitimate actions of the tribe or its
representatives. The charge is directed toward the individual members of the RTC who
conspired to deprive the members of the Band of their civil rights guaranteed by the
ICRA. The Band’s right to self-determination, which the court sought to protect in Santa
Clara, is not being threatened by ensuring that voters are not defrauded. In fact, the
Band’s right to free and open elections is vindicated by the present criminal action.

Third, in Santa Clara, the Court stressed that tribal courts are available to
vindicate rights created by the ICRA and are the appropriate forums to do so. 463 U.S.
at 65. But again, this is stated in the context of a civil action. In a criminal
context—when the entire tribal system allegedly is controlled by a few corrupt
individuals— there is no effective tribal forum available to protect an individual tribal
member’s civil rights.

Finally, even if jurisdiction in this case was asserted under the ICRA, Santa Clara
would not be dispositive, because the absence of a private right of action does not mean
absence of criminal jurisdiction. Rawley argues that “no voter could be a victim of a §
241 conspiracy if that voter could not enforce his or her voting rights under federal law
in a civil action in a federal court.” Rawley Br. at 28. If by this the defendant means to
imply that criminal jurisdiction cannot exist without a corresponding private right of
action, his premise is incorrect. Courts repeatedly have held that there is no private
right of action under § 241, even though the statute allows federal authorities to pursue
criminal charges. See, e.g., Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (“Only the
United States as prosecutor can bring a complaint under 18 U.S.C. §§ 241-242 . . .
These statutes do not give rise to a civil action for damages.”); Lerch v. Boyer, 929 F.
Supp. 319, 322 (N.D. Ind. 1996) (Federal criminal statute governing conspiracies against
civil rights did not provide for private right of action). There are numerous other
criminal statutes which the courts have found do not imply a private right of action,
including the Securities and Exchange Act, see Central

-25-
Bank v. First Interstate Bank, 511 U.S. 164, 190-91 (1994); the Ashurst-Sumners Act
governing shipment of prisoner-made goods in interstate commerce, see McMaster v.
Minnesota, 30 F.3d 976, 981-82 (8th Cir. 1994); the federal wire fraud statute, see
Official Publications Inc. v. Kable News Co., 884 F.2d 664, 667 (2d Cir. 1989); and the
Federal Elections Campaign Act, see Cort v. Ash, 422 U.S. 66, 79-84 (1975).

For these reasons, Clark and Rawley cannot rely on the Santa Clara decision to
support their argument that federal jurisdiction under § 241 cannot be asserted. The
decision regarding private rights of action brought under the ICRA against a tribal
government does not address the question of criminal jurisdiction asserted in this case.

In Stone, this court recently recognized that tribal sovereignty is “necessarily
limited” and “must not conflict with the . . . overriding sovereignty of the United States.”
112 F.3d at 974 (quoting United States v. Sohappy, 770 F.2d 816, 819 (9th Cir. 1985)).
“Federal laws of general applicability [such as § 241] ‘are applicable to the Indian unless
there exists some treaty right which exempts the Indian from the operation of the
particular statutes in question.’” Id. (quoting Burns, 529 F.2d at 117). No such treaty
right—to be free to conduct fraudulent elections against their people—is asserted here
by the defendants.

Contrary to the Clark and Ramsey’s argument, we find there is no reason why
federal criminal jurisdiction over election fraud would work to undermine the
sovereignty of the tribe or its political integrity. First, no tribal custom or tradition is
being threatened by the enforcement of criminal conspiracy laws. There is no tribal
custom or tradition of the Band of fraudulently using the election system to maintain
positions of power for a few corrupt individuals.

Second, as the Supreme Court stated in Santa Clara, tribal courts are the
preferable forum to resolve most issues arising out of the rights granted by the ICRA.
436 U.S. at 65-66. This allows legitimate tribal governments to shape their own

-26-
internal policy and assert their right to self-determination, and at the same time provides
individual Native Americans a forum to air their grievances. However, tribal members
are not able to practice self-determination when, as is alleged here, a few corrupt
individuals effectively control the entire tribal system. No purpose of tribal autonomy
is served by allowing a corrupt, unrepresentative system to continue unabated.

Finally, it is relevant to note that tribal governments are dependent
sovereigns—not independent foreign ones. As part of this dependent status, the U.S.
government serves as a trustee and has a direct responsibility as a trustee to protect the
civil rights granted by Congress to the Native Americans living on the reservations. We
believe failure of the United States to assert criminal jurisdiction over activity on a
reservation when the tribal government no longer operates legitimately would be an
abrogation of the U.S. government’s trustee relationship with tribes such as the
Chippewa. We thus conclude that Clark and Rawley may be prosecuted in federal court
under § 241 because such conspiracy encompassed a violation of the ICRA, a law of the
United States.

IV. Defendants’ Other Challenges

A. Joinder and Severance

Before trial, Clark and Wadena22 moved to sever Counts 1 through 28 (the non-
election counts) from Counts 29 through 44 (the election counts), alleging the two groups
involved separate and unrelated acts and transactions and were improperly joined. The
defendants also argued they would be prejudiced by the joinder of the offenses because
during trial, such joinder would allow the introduction of evidence that is not relevant to
some of the conspiracies. For example, the defendants asserted that evidence related to
the election fraud conspiracy is not relevant to the conspiracies

22
Rawley does not contest the joinder of the counts charged in this case.
-27-
involving the Casino or the Commissions. The government asserted joinder was proper,
alleging Clark, Rawley, and Wadena joined in multiple conspiracies to misapply tribal
funds for their personal use.

Following a hearing on the defendants’ pre-trial motion for severance, the district
court referred the matter to a federal magistrate judge for a report and recommendation.
In his report and recommendation, the magistrate judge concluded that on the face of the
Indictment, the government did not allege a “single, common purpose connecting the
election fraud allegations to the casino and fishing commission allegations.” United
States v. Wadena, Crim. No. 3-95-102 (D. Minn. Jan. 24, 1996) (magistrate judge’s
report and recommendation on defendants’ pretrial motions). The magistrate judge
recommended that the district court sever Counts 1 through 28 from Counts 29 through
44. Id.

The district court23 disagreed, concluding the Indictment alleged three conspiracies
that were a part of a series of acts or transactions, and joinder was proper. United
States v. Wadena, No. 3-95-102 (D. Minn. April 11, 1996) (order adopting portions of
magistrate judge’s report and recommendation). The court also noted that although “a
joint trial may result in evidence being admitted against one defendant that would
otherwise be irrelevant in the trial of a co-defendant, the Court finds that any prejudice
that may result may be avoided through limiting instructions to the jury.” Id. The
district court denied the defendants’ motion to sever, finding severance was not
warranted. Id. During trial, the district court continued to deny defendants’ motions to
sever.

In the present appeal, Clark and Wadena dispute the district court’s joinder of
Counts 1 through 28 with Counts 29 through 44. Alternatively, they dispute the district

23
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.

-28-
court’s denial of their motion to sever the counts. We address the defendants’ claims
separately.

1. Joinder under Federal Rule of Criminal Procedure 8

Federal Rule of Criminal Procedure 8 establishes the requirements for joinder of
offenses or defendants in the same indictment.24 Under Rule 8(b), defendants are
properly joined “if they are alleged to have participated in the same act or transaction or
in the same series of acts or transactions constituting an offense or offenses.” Fed. R.
Crim. P. 8(b). Generally, the “same series of acts or transactions” means acts or
transactions that are pursuant to a common plan or a common scheme. See United
States v. Jones, 880 F.2d 55, 61 (8th Cir. 1989). “[T]he defendants need not be charged
in each count.” Fed. R. Crim. P. 8(b). An indictment must reveal on its face a proper
basis for joinder. See United States v. Bledsoe, 674 F.2d 647, 655 (8th Cir. 1982).

24
Rule 8 provides:

(a) Joinder of Offenses. Two or more offenses may be charged in the
same indictment or information in a separate count for each offense if the
offenses charged, whether felonies or misdemeanors or both, are of the
same or similar character or are based on the same act or transaction or
on two or more acts or transactions connected together or constituting
parts of a common scheme or plan.

(b) Joinder of Defendants. Two or more defendants may be charged in
the same indictment or information if they are alleged to have participated
in the same act or transaction or in the same series of acts or transactions
constituting an offense or offenses. Such defendants may be charged in
one or more counts together or separately and all of the defendants need
not be charged in each count.

Fed. R. Crim. P. 8.

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 This Court reviews de novo claims of misjoinder. An error involving misjoinder
“‘affects substantial rights’ and requires reversal only if the misjoinder results in actual
prejudice because it ‘had substantial and injurious effect or influence in determining the
jury’s verdict.’” United States v. Lane, 474 U.S. 438, 449 (1986) (quoting Kotteakos
v. United States, 328 U.S. 750, 776 (1946)).

a. Propriety of Joinder with Respect to Clark

Clark asserts joinder under Rule 8(b) was improper because the Indictment alleges
three separate conspiracies as opposed to one overall scheme. Clark contends the
government links the three conspiracies solely through an “overlap in personnel” and a
“common objective of making money,” and such connections are an insufficient basis
for joinder. See Clark Br. at 39-40. Clark also claims the government’s assertions that
Clark, Rawley, and Wadena engaged in the non-election conspiracies to misapply tribal
funds, and Clark and Rawley engaged in the election conspiracy to further that objective,
are “unsupported by the indictment and factually impossible.” Id. at 40-41. This is
because Clark ran unopposed in the 1994 election, and according to the Indictment, the
non-election conspiracies were complete in March 1994—three months before the June
1994 election.

We disagree with Clark’s contentions. In this case, the government charged Clark
with all of the offenses relating to both the non-election conspiracies and the election
conspiracy. The government asserted Clark joined in the non-election conspiracies to
misapply tribal funds for his personal gain. The government also contended Clark joined
in the election conspiracy to ensure his and others’ elections and his continued access
to tribal funds. On its face, the Indictment alleges more than a mere overlap in
personnel and the common objective of making money. We deem it clear that the
Indictment alleges Clark participated in a series of acts or transactions with the sole
purpose of furthering a common scheme of using his and others’ positions in tribal
government to access tribal funds and misapply those funds for his personal

-30-
gain. Thus, joinder of all counts was proper under Federal Rule of Criminal Procedure
8(b).25

Moreover, were we to find joinder improper with respect to Clark, such error
would not require reversal. See Lane, 474 U.S. at 449. Clark contends reversal is
required because he has made a showing that there was a misjoinder that had a
substantial and injurious effect on the jury’s verdict. Specifically, Clark claims the
government used a “regrettable parade of cumulative witnesses,” most of whom merely
testified that they did not vote in the last tribal election, to show his bad character and
impermissibly influence the jury’s determination of guilt with respect to the non-election
charges. See Clark Br. at 42.

We disagree with Clark’s contentions for several reasons. First, during trial, the
government presented evidence of the charged conspiracies in three discrete phases.
Second, although the government presented numerous witnesses who testified they did
not vote in the last tribal election, it is difficult to see how this testimony, which was
specific to the election conspiracy, influenced the jury’s findings with respect to the
construction conspiracy and Commissions conspiracy. Third, the district court instructed
the jury that each defendant was entitled to be treated separately, and the jury must
return a separate verdict for each defendant and for each crime charged. See, e.g., Jury
Inst. 12, United States v. Wadena, No. 3-95-102 (D. Minn. June 24, 1996). The jury
ultimately acquitted one defendant of all charges and acquitted Clark and Rawley of one
charge each. Finally, the government presented potent evidence of Clark’s guilt of the
charges for which he was convicted. In sum, we conclude that any alleged misjoinder
did not have a substantial and injurious effect or influence on the jury’s verdict with
respect to Clark. See Lane, 474 U.S. at 449.

25
Clark’s contentions that joinder is improper because the election conspiracy
came later than the other two conspiracies, and because he ran unopposed in the
election, obfuscates the issue and ignores the singular and common purpose of Clark’s
involvement in the three conspiracies.

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b. Propriety of Joinder with Respect to Wadena

Like Clark, Wadena argues joinder in this case was improper. In particular,
Wadena claims that because the government did not allege that he was in any way
involved in the election conspiracy, he should not have been tried with the other
defendants who were alleged to have participated in all three conspiracies.26 For the
reasons discussed below, we conclude that even if misjoinder occurred with respect to
Wadena, any such error did not have a substantial and injurious effect or influence on
the jury’s verdict, and reversal is not required.

Wadena alleges the government turned his trial into an “election fraud circus” by
calling 136 election fraud witnesses to the stand, introducing nearly 600 election fraud
exhibits, and stating in its closing argument that all the defendants were guilty of
“controlling the ballot box in order to control the cashbox.” See Wadena Br. at 22-23.
Wadena asserts he suffered “overwhelming” prejudice in this “politically charged” trial.
Id. at 23.

We disagree. As noted above, the government presented evidence relating to the
three conspiracies in three distinct phases. When the government referred to the election
conspiracy in its opening statement, case-in-chief, and closing argument, it specifically
referred to the involvement of Clark and Rawley in that conspiracy. While Wadena
correctly asserts that the government presented numerous witnesses who testified in the
election conspiracy phase of the trial, as we stated above with respect to Clark, the
majority of those witnesses simply testified they did not actually vote in

26
Like Clark, Wadena also asserts the three alleged conspiracies were unrelated
to one another, and the government’s attempt to link the three conspiracies through an
“overlap in personnel” and a “common objective of making money” is an insufficient
basis for joinder. As stated above, we reject this allegation.

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the 1994 election even though ballots were cast in their names.27 Further, a large portion
of the exhibits presented during the election conspiracy phase of the trial consisted solely
of various absentee ballots. Overall, we do not believe the evidence presented in relation
to the election conspiracy caused the jury to convict Wadena of the charges arising from
the other two conspiracies.

Wadena also alleges he suffered prejudice because the district court failed to
instruct the jury not to consider the extensive election fraud evidence against him. See
Wadena Br. at 24, n.15. This argument is specious. Perhaps the district court did not
specifically tell the jury not to consider any election fraud evidence against Wadena.
However, in essence the district court told the jury to do the same thing when, as noted
above, it admonished the jury to treat each defendant separately and return a separate
verdict for each defendant and for each crime charged. Finally, the government
presented strong evidence of Wadena’s guilt in the offenses relating to the construction
conspiracy and the Commissions conspiracy. From our de novo review of the record,
we conclude that any misjoinder with respect to Wadena was harmless, and reversal is
not required. See Lane, 474 U.S. at 449.

27
Significantly, one election conspiracy witness who did mention Wadena
indicated it was Wadena who called the sheriff when he learned from a government
investigator that certain election documents under investigation may have been
deliberately shredded.

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2. Severance under Rule 14

Federal Rule of Criminal Procedure 14 allows the trial court to order severance
even if joinder was proper under Rule 8(b).28 The decision to sever is within the sound
discretion of the trial judge. See Jones, 880 F.2d at 61 (citing United States v. Adkins,
842 F.2d 210, 212 (8th Cir. 1988)). “We reverse a denial of a motion to sever only
when the defendant shows an abuse of discretion that resulted in severe prejudice.”
United States v. Crouch, 46 F.3d 871, 875 (8th Cir. 1995). “Severe prejudice occurs
when a defendant is deprived of an appreciable chance for an acquittal, a chance that
[the defendant] would have had in a severed trial.” United States v. Koskela, 86 F.3d
122, 126 (8th Cir. 1996).

a. Propriety of the Refusal to Sever with Respect to Clark

Clark contends the district court’s refusal to sever the offenses and the defendants
was a failure to follow Rule 14 and constitutes an abuse of its discretion. Clark argues
this refusal to sever the election counts from the non-election counts severely prejudiced
him. In support of this assertion, Clark argues the trial was

28
Rule 14 provides:

If it appears that a defendant or the government is prejudiced by a joinder
of offenses or of defendants in an indictment or information or by such
joinder for trial together, the court may order an election or separate trials
of counts, grant a severance of defendants or provide whatever other
relief justice requires. In ruling on a motion by a defendant for severance
the court may order the attorney for the government to deliver to the court
for inspection in camera any statements or confessions made by the
defendants which the government intends to introduce in evidence at the
trial.

Fed. R. Crim. P. 14.

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complex and lengthy, and the government’s evidence relating to the election conspiracy
overwhelmed and confused the jury, prevented the jury from compartmentalizing the
evidence, and tainted its verdict. He argues the district court’s jury instructions failed
to “sufficiently negate the harmful error in this case.” Clark Br. at 44.

From our review of the record, and for the reasons discussed above with respect
to joinder, we conclude the district court’s refusal to sever did not deprive Clark of an
appreciable chance of acquittal. Therefore, the district court’s refusal to sever was
within its discretion. See Crouch, 46 F.3d at 875; Koskela, 86 F.3d at 126.

b. Propriety of Refusal to Sever with Respect to Wadena

Wadena contends that when the district court repeatedly refused to sever his trial
from that of the other defendants, it abandoned its duty under Rule 14 and abused its
discretion. In support of this argument, Wadena makes essentially the same contentions
he made with respect to joinder. From our review of the record, and for the reasons
discussed above with respect to joinder, we conclude the district court’s refusal to grant
Wadena’s Rule 14 motion to sever did not cause him severe prejudice. See Crouch, 46
F.3d at 875; Koskela, 86 F.3d at 126.

B. Alleged Misuse of Civil IRS Audit

Clark and Wadena contend that in late 1993, the IRS conducted a civil audit of
Northern with the express and undisclosed purpose of gathering information for a
criminal investigation. Specifically, they allege the government’s chief investigator in
this case, Agent Michael Nelson of the IRS’ Criminal Investigation Division (“CID”),
had knowledge that IRS auditors were preparing to conduct a civil audit at the time the
government was conducting a criminal investigation into the same matters to be
examined by the civil audit. As supporting evidence of this contention, Clark and
Wadena assert that in early November 1993, before the IRS formally notified

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defendants of the upcoming civil audit, Agent Nelson asked Greg Nygren, an IRS
representative working on the civil audit, to fax him a copy of a past tax return of
Wadena’s. The civil audit was not referred to the CID until 1994.

Clark and Wadena complain the IRS’s simultaneous investigations violated their
Fourth and Fifth Amendment rights. During trial, Clark and Wadena made various
motions to suppress the evidence obtained from the civil audit and any evidence derived
therefrom. The district court denied the motions. On appeal, Clark and Wadena claim
the district court erred in denying their motions. We review for clear error the facts
supporting a district court’s denial of a motion to suppress. See United States v.
Cunningham, 133 F.3d 1070, 1072 (8th Cir. 1998) (citing Ornelas v. United States, 116
S. Ct. 1657, 1663 (1996)), petition for cert. filed, ___ U.S.L.W. ___ (U.S. April 13,
1998). We review de novo the legal conclusions based upon those facts. Id.

“[T]he IRS may not develop a criminal investigation under the auspices of a civil
audit.” United States v. Grunewald, 987 F.2d 531, 534 (8th Cir. 1993).

Evidence obtained in the course of a criminal investigation, where the
defendant has not been apprised of the nature of the investigation, may be
suppressed only if the defendant establishes that: 1) the IRS had firm
indications of fraud by the defendant, 2) there is clear and convincing
evidence that the IRS affirmatively and intentionally misled the defendant,
and 3) the IRS’s conduct resulted in prejudice to defendant’s constitutional
rights.

Id. (citing United States v. Meier, 607 F.2d 215, 217 (8th Cir. 1979) and United States
v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977)) (emphasis added). Although Clark and
Wadena allude to the three Grunewald factors, they do not directly address the factors
or acknowledge their burden to establish the existence of those factors. See Wadena Br.
at 10-19; Clark Br. at 44-46. Instead, they focus their arguments on Agent

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Nelson’s knowledge of and alleged direction of the simultaneous criminal investigation
and civil audit, as well as his alleged failure to refer the case to the CID. For the reasons
discussed below, we conclude the defendants have not shown the existence of the
Grunewald factors, and the IRS’s investigations did not violate their Fourth and Fifth
Amendment rights.

An IRS auditor conducting a civil audit who detects a firm indication of fraud
must suspend the audit and refer the case for evaluation by the CID. See Grunewald,
987 F.2d at 534 (citing Audit Guidelines for Examiners, CCH Internal Revenue Manual
(Audit), §§ 4231, 4564.21, 9322.1). A firm indication of fraud is different than an initial
indication that fraud exists, and it is more than a mere suspicion of fraud. See Groder
v. United States, 816 F.2d 139, 143 (4th Cir. 1987). Whether Nygren (the civil auditor)
had a firm indication of fraud and failed to suspend the civil audit is a question of fact
we review for clear error. See Cunningham, 133 F.3d at 1072. Clark and Wadena do
not present any evidence showing that Nygren had a firm indication of fraud and failed
to suspend the civil audit of Northern. Further, Nygren specifically denied he suspected
any fraud when he mailed the audit letter to Northern. Our review of Nygren’s trial
testimony pertaining to the simultaneous investigations likewise does not indicate
Nygren had a firm indication of fraud and failed to refer the case to the CID. Thus,
neither Clark nor Wadena have established the first Grunewald factor.

“[T]he mere failure of an IRS agent to inform a defendant that information
developed in an audit may result in a further criminal investigation does not indicate
affirmative and intentional deceit by the IRS.” Grunewald, 987 F.2d at 534. Clark and
Wadena do not present clear and convincing evidence that the IRS affirmatively and
intentionally misled the defendants by conducting the civil audit of Northern with the
express purpose of obtaining records for the criminal investigation. Indeed, defendants
point to nothing more than knowledge by Nygren that Agent Nelson was conducting a
criminal investigation. Neither Clark nor Wadena have established the second
Grunewald factor. Given Clark’s and Wadena’s failure to establish the first two

-37-
Grunewald factors, we need not address the third Grunewald factor. In sum, we
conclude the district court did not err when it denied Clark’s and Wadena’s various
motions to suppress the evidence obtained from the civil audit and any evidence derived
therefrom.

C. Count 19 as a Cognizable Offense

As noted above, Count 19 of the Indictment charged Clark, Rawley, and Wadena
with conspiring to misapply tribal funds, in violation of 18 U.S.C. § 1163. The object
of this conspiracy was to obtain tribal funds in the form of excessive payments for
serving on the Commissions. The overt acts undertaken in furtherance of this conspiracy
included the creation of the Commissions and the defendants’ receipt of various
commission payments. The jury convicted all three defendants of this charge.

Before trial, the defendants moved to dismiss Count 19. The district court denied
their motions. In the present appeal, Clark and Wadena contend the district court erred
in not dismissing Count 19, because the count fails to allege a cognizable offense.29
They argue that all of the overt acts alleged to have been committed in Count 19 were
official actions taken pursuant to their capacities as members of the RTC, and the RTC
as an entity or governmental body cannot conspire with itself. Clark and Wadena base
this contention on Runs After v. United States, 766 F.2d 347, 354 (8th Cir. 1985), which
they claim controls this case.

29
Rawley does not raise this issue in his brief. The government, in a footnote,
also claims Clark did not raise this issue below and is therefore barred from making this
argument for the first time on appeal. The government provides no legal or factual
support for this contention. Moreover, Clark contends he raised the issue below
because at the pretrial motion hearing, he adopted Wadena’s and Rawley’s motions and
arguments concerning jurisdiction, and this is a jurisdictional issue. For purposes of
this appeal, we will assume Clark raised this issue below.

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 In Runs After, several members of the Cheyenne River Sioux challenged the
validity of two resolutions passed by the Cheyenne River Sioux Reservation Tribal
Council (Tribal Council). 766 F.2d at 349. The two resolutions, passed by a vote of the
Tribal Council, barred certain tribal members from running in future tribal elections. Id.
The plaintiffs challenged the resolutions under various federal civil rights statutes. The
court rejected the plaintiffs’ challenges, concluding, in part, that “individual members
of the Tribal Council, acting in their official capacity as tribal council members, cannot
conspire when they act together with other tribal council members in taking official
action on behalf of the Tribal Council.” Id. at 354 (citing Herrmann v. Moore, 576 F.2d
453, 459 (2d Cir. 1978) (stating there is no conspiracy if the conspiratorial conduct is
essentially a single act by a single corporation acting exclusively through its own
directors, officers, and employees, each acting within the scope of his or her
employment)).

Runs After is a civil suit involving a dispute between tribal members. It is not a
criminal case alleging violations of federal criminal law by a tribal entity or by members
of a tribal entity. More importantly, Runs After involved the conduct of tribal council
members regarding two official acts of the entire tribal council—the passing of two
resolutions. In the present case, it appears there was an official act of the RTC to create
the Commissions. It also appears there was an official act by the RTC to approve a
commission payment range for each member. However, these are not the only overt acts
alleged by Count 19. The count also alleges numerous overt acts in which Clark,
Rawley, and Wadena, when they wanted money for purchases, debts, etc., individually
directed the tribe to issue them checks labeled as commission payments. These
individual payments were not collectively approved or issued by the RTC. For these
reasons, we conclude Runs After is distinguishable from this case. As Clark and
Wadena provide no other support for this argument, we conclude Count 19 alleged a
cognizable offense, and the district court did not err when it denied their motions to
dismiss the count.

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D. Interstate Nexus in Money Laundering Counts

The Indictment charged Clark and Wadena with various counts of money
laundering, in violation of 18 U.S.C. § 1957. At the close of the government’s case,
Clark and Wadena filed motions for judgment of acquittal on these counts pursuant to
Federal Rule of Criminal Procedure Rule 29. They argued that during its case-in-chief,
the government offered no evidence to prove the element of an interstate commerce
nexus, which is an essential element of any § 1957 violation. The district court denied
their motions.

In the present appeal, Clark and Wadena contend the district court erred in
denying their Rule 29 motions. In response, the government claims the defendants
waived their right to challenge the denial of their motion when they failed to renew the
motion at the close of evidence, and even if this court concludes the defendants did not
waive their right to appeal the denial of their motion, the government nonetheless
presented sufficient evidence to prove the element of an interstate commerce nexus. We
address the government’s waiver argument first.

Generally, a defendant waives the right to appeal a denial of a motion for acquittal
if the defendant fails to renew the motion at the close of all of the evidence. See
Edwards v. United States, 333 F.2d 588, 589 (8th Cir. 1964). Such a waiver limits the
scope of appellate review to a determination of whether there was plain error or a defect
affecting the substantial rights of the defendant. See id. It appears neither Wadena nor
Clark renewed their motion for acquittal at the close of the evidence. Thus, it is likely
they waived their right to appeal the denial of the motion. See id. Nonetheless, because
the government’s alleged failure to prove an essential element of the money laundering
offenses would be a defect affecting the substantial rights of Clark and Wadena, we will
address the issue of whether the government presented sufficient evidence to prove the
element of an interstate commerce nexus.

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 It appears this court has not determined the quantum of evidence necessary to
prove the element of an interstate commerce nexus in § 1957 cases. Other circuits,
however, have held evidence that the transaction in question was in interstate commerce
or utilized the instrumentalities of interstate commerce is sufficient proof of the element
of an interstate commerce nexus. See, e.g., United States v. Kunzman, 54 F.3d 1522,
1527 (10th Cir. 1995) (concluding evidence of checks drawn on federally-insured banks
and services purchased from an out-of-state company is sufficient to support finding of
interstate commerce nexus); United States v. Peay, 972 F.2d 71, 74-75 (4th Cir. 1992)
(concluding evidence that funds were deposited and withdrawn from an FDIC-insured
institution provided sufficient proof of an interstate commerce nexus). The government
presented evidence that the checks referenced in Counts 10 through 18 were all
deposited in either the First National Bank of Detroit Lakes, Minnesota or the State
Bank of Winger, Minnesota. As these institutions are FDIC-insured, the government’s
evidence that these checks were deposited into these institutions is sufficient proof of an
interstate commerce nexus. See, e.g., Kunzman, 54 F.3d at 1527. Thus, the district
court did not err when it denied Clark’s and Wadena’s Rule 29 motions.

E. Admission of Government’s Exhibit 97

During trial, the government presented exhibit 97 for admission into evidence.
Exhibit 97 consisted of a Northern check numbered 3657 in the amount of $15,000,
signed by Clark, and made payable to Jerry Rawley. The exhibit also consisted of the
check’s register stub bearing the number 3657, the name Jerry Rawley, and the amount
of $15,000. Significantly, the stub also contained a partially-erased pencil notation
“gift.” Before trial, Rawley raised three objections to the admission of the check stub
portion of the exhibit into evidence: 1) failure to authenticate; 2) hearsay; and 3) denial
of his Sixth Amendment right to confront witnesses against him. The district court
admitted exhibit 97 into evidence.

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 On appeal, Rawley contends we must reverse his convictions of Counts 1, 3, and
4, because the district court erred in admitting exhibit 97. We review for abuse of
discretion the district court’s decision that exhibit 97 was authenticated and did not
constitute inadmissible hearsay. See United States v. Henneberry, 719 F.2d 941, 948
(8th Cir. 1983); United States v. Jackson, 67 F.3d 1359, 1364 (8th Cir. 1995). We
review de novo the district court’s decision that admission of exhibit 97 did not violate
Rawley’s Sixth Amendment rights. See United States v. Johnson, 56 F.3d 947, 953 (8th
Cir. 1995).

We address Rawley’s authentication argument first. A party authenticates a
document by presenting evidence sufficient to support a finding that the document is
what the party claims it to be. See Fed. R. Evid. 901(a). The party authenticating a
document need only prove a rational basis for that party’s claim that the document is
what it is asserted to be. See United States v. Long, 857 F.2d 436, 442 (8th Cir. 1988)
(citing United States v. Natale, 526 F.2d 1160, 1173 (2d Cir. 1975)). “This may be done
with circumstantial evidence.” Id. The government offered sufficient evidence to
authenticate exhibit 97. Thus, the district court did not abuse its discretion when it
decided the government properly authenticated exhibit 97.

Rawley’s next contention is that the district court abused its discretion when it
concluded the partially-erased word “gift” on the check register was not hearsay. A
written statement that would ordinarily be defined as hearsay is not hearsay if the
statement is offered against a party, and it is a statement of a co-conspirator of that party
made during the course of and in furtherance of a conspiracy. See Fed. R. Evid.
801(d)(2)(E). The “gift” notation falls within the scope of Federal Rule of Evidence
801(d)(2)(E). Therefore, we conclude the district court did not abuse its discretion when
it decided the statement “gift” is not hearsay. Additionally, after a de novo review of
Rawley’s Sixth Amendment challenge, we conclude it is without merit.

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F. Jury Instructions

The defendants allege four errors relating to the district court’s instructions to the
jury. First, Clark30 and Wadena allege the district court invaded the province of the jury
by instructing the jury that the government had already proven the essential elements of
two charged offenses: theft or bribery concerning programs receiving federal funds, in
violation of 18 U.S.C. § 666 and misapplication of tribal funds, in violation of 18 U.S.C.
§ 1163. Second, Clark and Wadena claim the district court deprived them of due
process and a fair trial when it failed to instruct the jury regarding the required intent of
a § 666 violation and a § 1163 violation. Third, Rawley contends the district court erred
in submitting a jury instruction relating to Minnesota notary law. Finally, Rawley
contends the district court erred when it refused to provide the jury with a theory of
defense instruction he requested. We address these arguments in turn.

1. Instructions Regarding Essential Elements of Offenses

In jury instruction 29, the district court cited to the jury pertinent aspects of 18
U.S.C. § 1163, including the section’s definition of the term “Indian tribal organization.”
The court then stated “[t]he White Earth Band of the Minnesota Chippewa Tribe is an
Indian tribal organization.” Jury Inst. 29, United States v. Wadena, No. 3-95-102 (D.
Minn. June 24, 1996). In jury instruction 33, the district court listed the elements of an
18 U.S.C. § 666 violation. One element of a § 666 offense is that the accused must be
an agent of an Indian tribal government or any agency thereof. 18 U.S.C. § 666
(emphasis added). In jury instruction 33, the court told the jury it must find “that during
the time period alleged in each count the defendant was an agent of the White Earth
Band of Chippewa Indians.” Jury Inst. 33,

30
Clark adopts Wadena’s arguments regarding jury instructions pursuant to
Federal Rule of Appellate Procedure 28(j) and Eighth Circuit Rule of Appellate
Procedure 28A(j).

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United States v. Wadena, No. 3-95-102 (D. Minn. June 24, 1996). Clark and Wadena
assert that whether the Band was an Indian tribal organization under § 1163, and
whether the Band was an Indian tribal government under § 666, were questions for the
jury, and the district court violated their Fifth and Sixth Amendment rights by instructing
the jury that these essential elements of the § 1163 and § 666 offenses had already been
proven.

A court may err when it instructs a jury that a fact essential to a defendant’s
conviction has already been established. See Sullivan v. Louisiana, 508 U.S. 275, 277
(1993). However, an error of this type is subject to harmless error review. See United
States v. Raether, 82 F.3d 192, 194 (8th Cir. 1996). Clark and Wadena have vigorously
asserted throughout this appeal that the federal courts lack jurisdiction over this entire
case because of the Band’s status as an independent sovereign and their statuses as
members of the Band. Given this position, we do not see how the court’s errors in jury
instructions 29 and 33, if any, could have harmed either Clark or Wadena. Thus, without
addressing whether the district court’s jury instructions 29 and 33 were in fact erroneous,
we conclude the claimed error was harmless.

2. Failure to Instruct on Intent

Clark and Wadena claim that the district court failed to instruct the jury that, with
respect to violations of 18 U.S.C. § 666 and § 1163, the jury must find they acted with
an intent to injure or defraud. We disagree. Neither § 666 nor § 1163 contain such a
requirement. See 18 U.S.C. §§ 666 and 1163.

3. Instructions on Minnesota Notary Law

In jury instruction 53, the district court stated: “In taking an acknowledgment,
verification, or witnessing a signature a notary must determine, that the person appearing
before him or her is the person whose true signature is on the instrument.

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You are instructed that to do otherwise is a violation of state law.” Jury Inst. 53, United
States v. Wadena, No. 3-95-102 (D. Minn. June 24, 1996). Rawley objected to this
instruction when the district court made it. On appeal, Rawley contends this instruction
was irrelevant, and “[t]he only effect the instruction could have on the jurors was either
to make the apparent state law violation somehow appear to be an element of the federal
offenses, or to cast the failure [to properly notarize ballots] as evidence of bad acts by
the defendants.” See Rawley Br. at 35-36. We review instruction 53 for harmless error.
See United States v. Ryan, 41 F.3d 361, 366 (8th Cir. 1994) (citing United States v.
Voss, 787 F.2d 393, 398 (8th Cir. 1986)). In this case, the issue of whether numerous
absentee ballots were properly notarized by state-certified notaries was an important
aspect of the prosecution of the election conspiracy and offenses arising from that
conspiracy. Thus, jury instruction 53 was not irrelevant and was not in error.

4. Rawley’s Proposed Theory of Defense Instruction

With respect to the tribal election notarization process, Rawley also proposed a
jury instruction indicating, in part:

Under the laws of the Minnesota Chippewa Tribe and the White Earth
Band, a violation of the requirement that an absentee vote be marked and
signed in the presence of a notary public did not invalidate any absentee
vote prior to the June 14, 1994, election. Accordingly, in order to find that
a defendant had the intent to have a false vote cast in the 1990 or 1994
election(s), you must find that the government proved such intent, beyond
a reasonable doubt, by showing evidence that the defendant intended to
cast false votes in the election other than with evidence of a mere violation
of the requirement that an absentee vote be marked and signed in the
presence of a notary public.

See Addendum to Rawley Br. Rawley contends he was entitled to this instruction
because it was timely, supported by the evidence and set forth a correct statement of

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the law (i.e. 18 U.S.C. § 241). See Rawley Br. at 36-37 (citing United States ex rel.,
Means v. Solem, 646 F.2d 322, 328 (8th Cir. 1980)). We disagree. The district court
adequately and correctly instructed the jury on the elements of the § 241 offenses, and
Rawley is not entitled to particularly worded instructions regarding the § 241 offenses.
Cf. United States v. Bettelyoun, 16 F.3d 850, 853 (8th Cir. 1994).

G. Sentencing Enhancement for Abuse of Trust in Money Laundering Offenses

Section 3B1.3 of the sentencing guidelines allows for a two-level increase “[i]f
the defendant abused a position of public or private trust, or used a special skill, in a
manner that significantly facilitated the commission or concealment of the offense.”31
Legal application of the guidelines to the facts is reviewed de novo. See, e.g., United
States v. Evans, 30 F.3d 1015, 1020 (8th Cir. 1994). However, the district court’s
application of § 3B1.3 is a factual finding, reviewed for clear error. See United States
v. Johns, 15 F.3d 740, 744 (8th Cir. 1994) (stating abuse of trust adjustment is entitled
to great deference and will not be disturbed unless clearly erroneous).

In sentencing Clark and Wadena, the district court refused to group the money
laundering counts (Counts 10-18) with the remaining charges and convictions, finding
that “the money laundering counts in this case were not an integral part of an overall
scheme” to perpetuate theft or bribery. United States v. Clark, No. 3-95-102 (D. Minn.
Nov. 26, 1996) (Statement of Reasons for Imposing Sentence), at 4. Despite this
finding, the district court still used § 3B1.3 to apply a two-level enhancement to the
money laundering charges for abuse of a position of public trust.

31
The guideline commentary states that “the position of trust must have
contributed in some significant way to facilitate the commission or concealment of the
offense (e.g., by making the detection of the offense or the defendant’s responsibility
for the offense more difficult.)” U.S.S.G. § 3B1.3, comment. (n.1) (1997).

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 The government contends that the enhancements were correct because, while the
money-laundering charges were grouped separately, the theft and fraud counts – which
involved an abuse of trust – can be considered “relevant conduct” with respect to the
money laundering. In addition, the government argues, Clark and Wadena’s positions
allowed the defendants to engage in money-laundering activity without questions from
either the bank or the tribal community. In this sense, the government argues, their
positions of trust “significantly facilitated” the commission or concealment of the
offense.

The first problem with this reasoning is that, while the government argues Clark
and Wadena’s abuse of positions of trust to obtain illegal proceeds was relevant conduct,
the district court specifically found the money laundering activity was not related to the
theft and bribery schemes. Additionally, § 2C1.2 of the sentencing guidelines
specifically states that when a crime involves giving or receiving a bribe or gratuity, a
sentencing court should “not apply the adjustment in § 3B1.3 (Abuse of Position or Trust
or Use of a Special Skill).” U.S.S.G. § 2C1.2, comment. (n.2) (1997).32 In other words,
if the district court had grouped the money laundering and gratuity charges together, the
guidelines would have directly prohibited an abuse of trust enhancement under § 3B1.3.
By using the abuse of trust involved in the “related” bribery conduct to enhance the
money laundering charges, the district court would be indirectly doing what § 2C1.2 of
the guidelines directly prohibits.

Second, we find there is no evidence to support the assertion that the defendants’
positions as public officials “significantly facilitated” the acts of money laundering.

32
While the guidelines do not explain this rule, it appears the prohibition against
using § 3B1.3 to enhance a bribery conviction is an effort by the sentencing
commission to avoid “double counting.” See United States v. Kummer, 89 F.3d 1536,
1546 (11th Cir. 1996) (“[G]enerally § 3B1.3 should not be applied in these [bribery or
gratuity] cases because the Guidelines took into consideration the fact that such cases
necessarily involve abuse of positions of trust.”).

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The indictment charges that, on nine separate occasions, Clark gave checks from
Northern Drywall to Wadena, who subsequently deposited the checks into his personal
accounts at the First National Bank of Detroit Lakes, and the Farmers State Bank of
Winger. There is no proof presented that the banks or the bank tellers knew Wadena
was chairman of the tribal council. The checks were not from or written to the tribal
council, but instead were from a private company, Northern Drywall, with Clark as
president. Finally, there is no indication on any of the checks that either defendant was
acting in his capacity as an official of the tribal council.

In sum, the government has failed to carry its burden of proving Wadena and
Clark’s positions significantly facilitated the commission or concealment of the money-
laundering activities. For this reason, we reverse the two-level abuse of discretion
enhancement under § 3B1.3, and remand Clark and Wadena’s sentences to the district
court.

The judgments of conviction for each defendant are AFFIRMED. The sentences
of Clark and Wadena are remanded to the district court for resentencing.33

33
Clark received a sentence of 46 months based upon an offense level of 22.
Without a two-point enhancement for abuse of trust in the money laundering offense
his offense level becomes 20. Upon resentencing, the guideline range changes from
41-51 months to 33-41 months.

Wadena received a sentence of 51 months based upon an offense level of 22.
Without the two-point enhancement for breach of trust, his new offense level is 20.
Upon resentencing, the guideline range changes from 41-51 months to 33-41 months.

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BEAM, Circuit Judge, concurring and, in part, dissenting.

I concur in the result reached by the court in Part II and, with qualification,34 Part
IV. I disagree, however, with the court's conclusion in Part III that we have jurisdiction
to prosecute Clark and Rawley for a violation of 18 U.S.C. § 241. Therefore, I dissent
in part.

In asserting subject-matter jurisdiction under this general federal criminal law, the
court not only disregards the longstanding federal policy of advancing tribal self-
determination, but blatantly fails to apply circuit precedent. We have held that "if a
particular Indian right or policy is infringed by a general federal criminal law, that law
will be held not to apply to Indians on reservations unless specifically so provided."
United States v. Blue, 722 F.2d 383, 385 (8th Cir. 1983) (McMillian, J.). The right of
tribal self-government has long been recognized and protected by both the courts, see,
e.g., United States v. Kagama, 118 U.S. 375, 381-82 (1886), and Congress, see, e.g., 18
U.S.C. § 1152 (declaring that "[t]his section shall not extend to offenses committed by
one Indian against the person or property of another Indian"). In my view, the exclusive
right to prosecute members for fraud in a tribal election is a necessary and intimate
aspect of tribal self-government. Federal prosecution of tribal election crimes will
severely interfere with the tribes' ability, as separate sovereigns, to eradicate such

34
The court boldly cites United Stated v. Bledsoe, 674 F.2d 647, 655 (8th Cir.
1982), for the proposition that "[a]n indictment must reveal on its face a proper basis
for joinder." Ante at 27-28. Notwithstanding the court's unfettered confidence in
Bledsoe, this issue equally divided the court in United States v. Grey Bear, 863 F.2d
572 (8th Cir. 1988) (en banc) (5-5 decision) (stating that an indictment must reveal on
its face a proper basis for joinder) (Lay, C.J., Heaney, McMillian, Richard S. Arnold,
and Wollman, JJ., joining) (stating that propriety of joinder is not limited to the face of
the indictment) (John R. Gibson, Fagg, Bowman, Magill, and Beam, JJ., joining). I
agree with the court's conclusion here that any joinder error was harmless, but I do not
agree with the unnecessary citation to Bledsoe, particularly when unaccompanied by
an explanation.

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corruption in their own elections and their own government. Until Congress specifically
provides for jurisdiction over this type of internal tribal matter, we must avoid the
paternalistic temptation to assert jurisdiction based on the subjective belief that federal
intervention is the only way to protect the civil rights of tribal members.
Jurisdiction over a dispute arising on an Indian reservation "is governed by a
complex patchwork of federal, state, and tribal law." Duro v. Reina, 495 U.S. 676, 680
n.1 (1990). Because Indian tribes pre-existed the Constitution, they "still possess those
aspects of sovereignty not withdrawn by treaty or statute, or by implication as a
necessary result of their dependent status." United States v. Wheeler, 435 U.S. 313, 323
(1978). One aspect of this retained sovereignty includes the power to "control their own
internal relations," Duro, 495 U.S. at 685, which necessarily includes criminal
"jurisdiction of all controversies between" tribal members, e.g., In re Mayfield, 141 U.S.
107, 115-16 (1891). Congress has broad powers to modify this retained sovereignty by
conferring federal jurisdiction over crimes committed on Indian reservations. See, e.g.,
Talton v. Mayes, 163 U.S. 376, 384 (1896). Thus, the question is whether Congress has
provided jurisdiction for this federal prosecution.

The court correctly finds no basis for jurisdiction in the Indian Country Crimes
Act and the Indian Major Crimes Act. See 18 U.S.C. §§ 1152 and 1153. Faced with
congressional silence, however, the court turns to a general federal law, which by its
terms applies to all persons. See 18 U.S.C. § 241. Section 241 provides that it is
unlawful for two or more persons to "conspire to injure, oppress, threaten, or intimidate
any person in any State, Territory, Commonwealth, Possession, or District in the free
exercise or enjoyment of any right or privilege secured to him by the Constitution or laws
of the United States." Id.

Assuming that Congress intended to include American Indians within the scope
of laws which, by their terms, are applicable to all persons, we have applied general
federal laws to tribal crimes. See, e.g., Stone v. United States, 506 F.2d 561, 563 (8th
Cir. 1974). However, we have refused to extend this source of jurisdiction to purely

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internal tribal matters because that would intrude upon tribal sovereignty. See, e.g.,
United States v. White, 508 F.2d 453, 455 (8th Cir. 1974) (stating that "areas
traditionally left to tribal self-government, those most often the subject of treaties, have
enjoyed an exception from the general rule that congressional enactments, in terms
applying to all persons, includes Indians and their property interests"); see also Felix S.
Cohen, Felix S. Cohen's Handbook of Federal Indian Law, 286 (1982 ed.) (stating that
"the Supreme Court has consistently recognized the unique status of tribes, Indians, and
their lands, and has required that the congressional purpose of a conflicting law clearly
require that it apply to Indians before Indian rights are held implicitly infringed"). Thus,
the question is whether prosecution under section 241 for tribal election fraud intrudes
upon tribal self-government.

The court mischaracterizes this inquiry by looking to whether there is a tribal right
to use the election system fraudulently in order to maintain a position of power. Ante
at 24. Obviously, no such right exists. What the court fails to appreciate, however, is
that the tribal right at issue is the exclusive right to prosecute tribal election offenses,
which is necessary to maintain political integrity. See Montana v. United States, 450
U.S. 544, 566 (1981) (discussing the inherent tribal power to regulate activities that
"threatens or has some direct effect on the political integrity . . . of the tribe"). Intently
focused on abating the corrupt actions of a few individuals, the court overlooks the
important interest of the tribe in abating corruption within its own government.
Monitoring tribal elections is an area traditionally left to tribal government and any
contrary holding would violate the federal policy of respecting tribal sovereignty in the
absence of express congressional authority.

Of course, Congress could remove this aspect of sovereignty and interject federal
election policies and remedies into tribal elections. The wisdom of such a decision is
best left to Congress, which is obviously better positioned to determine its potential
impact. Rather than deferring to Congress, the court recklessly adopts a newly minted
balancing test, not fairly supported as near as I can find anywhere within the recorded

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annals of American Indian litigation, weighing federal interests against tribal interests.
See ante at 16. The result is a vague and incoherent test for jurisdiction. We should
simply limit our inquiry to whether, on a case-by-case basis, the application of a general
criminal law would infringe on tribal sovereignty. See Blue, 722 F.2d at 385.

I recognize that the oppression of tribal voting rights constitutes a fundamental
assault on a democratic society and a serious violation of the civil rights of tribal
members. Nonetheless, only Congress can remove this aspect of sovereignty. Because
Congress has not so acted, I would decline to assert jurisdiction over the election
conspiracy offenses.

Even if we did have jurisdiction, I would disagree with the court's unprecedented
extension of a federal election statute (18 U.S.C. § 241) to a tribal election. Although
the Supreme Court has applied section 241 to a hybrid local and federal election, it did
so because the conspirators used a voting machine to cast votes for both federal and
local candidates. See Anderson v. United States, 417 U.S. 211, 225 (1974). The Court
expressly declined to address whether section 241 would apply to a conspiracy to cast
false votes in a local election that did not include any federal candidates. Id. at 228.

Similarly, we have applied section 241 to a local election, but only where the
conspirators destroyed absentee ballots that also included votes that had been cast for
federal candidates. See United States v. Townsley, 843 F.2d 1070, 1080 (8th Cir.
1988). Contrary to the court's reading of Townsley, see ante at 19-20, we have never
endorsed the application of section 241 to purely local, much less tribal, elections. We
cautioned that "we do not reach the question left undecided by the Supreme
Court—whether 18 U.S.C. § 241 extends to conspiracies to cast votes in purely local
elections in which no federal candidate is on the ballot." Townsley, 843 F.2d at 1080
n.10. If we were required to reach this issue, which I submit we are not, due to our lack
of jurisdiction in the first instance, I would not extend section 241 to a tribal

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election. See Bathgate v. United States, 246 U.S. 220, 226 (1918) (discussing the
congressional policy "not to interfere with elections within a State except by clear and
specific provisions").

Accordingly, I respectfully dissent from Part III of the court's decision.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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