U.S. v. Wadena
| Decision Date | 27 August 1998 |
| Docket Number | Nos. 96-4141,96-4145 and 96-4146,s. 96-4141 |
| Citation | 1998 WL 47709,152 F.3d 831 |
| Parties | -6049, 98-2 USTC P 50,849, 49 Fed. R. Evid. Serv. 925 UNITED STATES of America, Appellee, v. Darrell Chip WADENA, Appellant. UNITED STATES of America, Appellee, v. Jerry Joseph RAWLEY, Jr., Appellant. UNITED STATES of America, Appellee, v. Rick CLARK, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jeanne J. Graham, Asst. U.S. Attorney, Minneapolis, MN, argued and on the brief (Kenneth Wayne Saffold, D. Gerald Wilhelm, Asst. U.S. Attys., Minneapolis, MN, on the brief), for U.S.
John C. Brink and Daniel L. Gerdts (argued), Brink Law Office, Minneapolis, MN, for Defendant-Appellant Darrell 'Chip' Wadena.
Ronald I. Meshbesher, (argued) and Howard I. Bass, Meshbesher & Spence, Minneapolis, MN, for Defendant-Appellant Rick Clark.
Rick Clark, Longby, MN, pro se.
Charles N. Ek, Law Office of Charles N. Ek, P.A., Minneapolis, MN (argued) and Peter B. Wold, Wold, Jacobs & Johnson, P.A., Minneapolis, MN, for Defendant-Appellant Jerry Joseph Rawley, Jr.
Before McMILLIAN, LAY, and BEAM, Circuit Judges.
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 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.
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. 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.
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 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, 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.
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 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 Commissions conspiracy. The jury convicted Rawley of all counts except for one count of misapplying tribal funds.
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...
To continue reading
Request your trial
-
Transclean Corp. v. Bridgewood Services, Inc., Civ. 97-2298 RLE.
...must demonstrate a rational basis for that party's representation that the evidence is what it is purported to be. United States v. Wadena, 152 F.3d 831, 854 (8th Cir.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1355, 143 L.Ed.2d 517 (1999). One variation of this principle — the "chain of c......
-
U.S. v. Gotti
...Notice the reference to allegation; the test is what the indictment charges, not what the evidence shows."); United States v. Wadena, 152 F.3d 831, 848 (8th Cir.1998) ("An indictment must reveal on its face a proper basis for joinder."), with United States v. Wilson, 26 F.3d 142, 153 (D.C.C......
-
U.S. v. Brisk, s. 97-1298
...jurisdiction in non-enclave law cases. See, e.g., United States v. Yannott, 42 F.3d 999, 1004 (6th Cir.1994); United States v. Wadena, 152 F.3d 831, 841 (8th Cir.1998); Begay, 42 F.3d at 498. See also Richard W. Garnett, Once More into the Maze: United States v. Lopez, Tribal Self-Determina......
-
Oglala Sioux Tribe v. Schwarting
...implies a corresponding private right of action. Kunzer v. Magill, 667 F.Supp.2d 1058, 1061 (D.Minn.2009) (citing United States v. Wadena, 152 F.3d 831, 845–46 (8th Cir.1998)); see Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 190–91, 114 S.Ct. 1439, 128......
-
TAX VIOLATIONS
...possible Fourth and Fifth Amendment constitutional violations by the IRS in its decisions to refer case to CI); United States v. Wadena, 152 F.3d 831, 850–52 (8th Cir. 1998) (discussing possible Fourth and Fifth Amendment violations stemming from CI referrals). But see Groder v. United Stat......
-
Election law violations.
...v. Sims, 377 U.S. 533, 554-55 (1964). (21.) See DOJ ELECTION PROSECUTION MANUAL, supra note 3, at 22-23; see also United States v. Wadena, 152 F.3d 831, 843 (8th Cir. 1998); United States v. Olinger, 759 F.2d 1293, 1297-98 (7th Cir. 1985); United States v. Stollings, 501 F.2d 954, 955 (4th ......
-
Election law violations.
...see also United States v. Anderson, 481 F.2d 685 (4th Cir. 1973), aff'd on other grounds, 417 U.S. 211 (1974); United States v. Wadena, 152 F.3d 831 (8th Cir. 1998); United States v. Howard, 774 F.2d 838 (7th Cir. 1985); United States v. Olinger, 759 F.2d 1293 (7th Cir. 1985); United States......
-
Tax violations.
...153 F.3d at 451 (considering whether Fourth and Fifth Amendment violation occurred in case referral to CID); United States v. Wadena, 152 F.3d 831, 850-51 (8th Cir. 1998) (discussing possible Fourth and Fifth Amendment violations stemming from CID referral); United States v. Knight, 898 F.2......