42 F.3d 486 (9th Cir. 1994), 93-10165, United States v. Begay

Docket Nº:93-10165, 93-10167 to 93-10175.
Citation:42 F.3d 486
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Nez BEGAY, Donald Benally, Paul Kinlicheenie, Earl Roy Lee, Peter MacDonald, Sr., Ned M. McKensley, Alfred Scott, Sr., Anna Sorrell, Evangeline Begay Wauneka, Kee Ike Yazzie, Defendants-Appellants.
Case Date:November 07, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 486

42 F.3d 486 (9th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

John Nez BEGAY, Donald Benally, Paul Kinlicheenie, Earl Roy

Lee, Peter MacDonald, Sr., Ned M. McKensley, Alfred Scott,

Sr., Anna Sorrell, Evangeline Begay Wauneka, Kee Ike Yazzie,

Defendants-Appellants.

Nos. 93-10165, 93-10167 to 93-10175.

United States Court of Appeals, Ninth Circuit

November 7, 1994

Argued and Submitted Oct. 4, 1994.

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Jess A. Lorono, Phoenix, AZ, for defendant-appellant, John Nez Begay.

David M. Ochoa, Phoenix, AZ, for defendant-appellant, Donald Benally.

David L. Titterington, Asst. Federal Public Defender, Phoenix, AZ, for defendant-appellant, Paul Kinlicheenie.

Dana Carpenter, Phoenix, AZ, for defendant-appellant, Earl Roy Lee.

Bruce S. Griffin, Aspey, Watkins & Diesel, Flagstaff, AZ, for defendant-appellant, Peter MacDonald, Sr.

Douglas M. McVay, Phoenix, AZ, for defendant-appellant, Ned M. McKensley.

Michael Morales, Phoenix, AZ, for defendant-appellant, Alfred Scott, Sr.

C. Kenneth Ray, Jr., Phoenix, AZ, for defendant-appellant, Anna Sorrell.

George F. Klink, Phoenix, AZ, for defendant-appellant, Evangeline Begay Wauneka.

Stephen I. Leshner, Van O'Steen and Partners, Phoenix, AZ, for defendant-appellant, Kee Ike Yazzie.

Janet Napolitano, U.S. Atty. for Dist. of Arizona, Georgia B. Ellexson, Chief, Appellate Section, and Joseph J. Lodge, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: SNEED, PREGERSON, and WIGGINS, Circuit Judges.

PREGERSON, Circuit Judge:

BACKGROUND

Appellants were among thirty-two individuals charged with various criminal offenses arising from events leading up to and including the civil disturbance of July 20th, 1989, at the Navajo Nation Administration and Finance Building in Window Rock, Arizona. On that day, supporters of Appellant Peter MacDonald, Sr., the former Chairman of the Navajo Tribal Council of Delegates, engaged in a violent confrontation with tribal police. During the confrontation, several tribal police officers were assaulted and injured, their police vehicles were vandalized, the Navajo Nation Administration and Finance Building was entered and ransacked, and documents were removed from that building. Two demonstrators were killed.

On July 30, 1991, Appellants were indicted on numerous offenses arising from the July 20th incident. The charges included conspiracy and various counts of assault, robbery, kidnapping, and burglary. The trial, which lasted nearly four months, began on July 9, 1992. At trial, the Appellants contended that the events at issue were the result of a tribal political dispute, and that none of the actions taken by MacDonald or any of the other Appellants were illegal because MacDonald had been improperly removed from the office of Chairman. On November 12, 1992, after deliberating for twenty-one days, the jury returned guilty verdicts against all defendants, although it did not reach verdicts on some counts. The District Court granted the Government's motions to dismiss the counts

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on which the jury was unable to reach verdicts.

  1. The Alleged Conspiracy

    The Navajo Tribal Council of Delegates (the "Council") is the governing body of the Navajo Nation and is similar in function to the Congress of the United States. The Council is elected by tribal members from the various chapters or districts of the Navajo Nation. At the time of the events at issue, the Council was composed of eighty-eight delegates. The Council meets four times a year. When the Council is not in session, its business is carried out by various standing committees, including the advisory committee, which sets the agenda for the Council meetings.

    The Council Chairman, who is elected at large, presides over the Council, is responsible for carrying out the programs and policies of the Council, controls its agenda, determines when matters are put to a vote, and decides which delegates will speak and when. Further, the Chairman appoints delegates to, and designates the chairmen of, the various standing committees of the Council, and in many instances may unilaterally remove delegates from any committee.

    The events which led up to the July 20th incident are as follows: Peter MacDonald, Sr., served as Chairman of the Council for three four-year terms between 1970 and 1982, and he won reelection to that position in 1986. The 1989 Winter Session of the Council was scheduled to begin on February 14th. In January and February of 1989, before the Winter Session had begun, the United States Senate Select Committee on Indian Affairs was investigating allegations of fraud and corruption in the Navajo Nation Tribal Government. This investigation focused in part on Peter MacDonald. 1 MacDonald knew of this investigation, and knew that during the upcoming session, the Council planned to vote whether to place him on administrative leave pending the outcome of the Senate investigation.

    The purpose of placing MacDonald on administrative leave was to give him the opportunity to clear his name, to protect the sovereignty of the Navajo tribe, and to maintain a credible tribal government. Council members were also concerned that the Council would lose credibility with the United States Congress if MacDonald was not placed on administrative leave pending the investigation's outcome.

    To prevent a vote on the issue of MacDonald's administrative leave at the Winter Session, MacDonald and his supporters proposed a lengthy, twenty-five item agenda, during which MacDonald would recognize only those delegates who supported his continued chairmanship. MacDonald's strategy failed because the Council refused to approve the proposed agenda. In an attempt to avoid being stripped of all power, MacDonald offered to go on administrative leave if his Vice Chairman, Johnny Thompson, was named Chairman, and if MacDonald was provided an office, staff, and funds for legal assistance during the duration of his leave.

    The Council turned down MacDonald's offer, and passed a resolution 2 that placed MacDonald on paid administrative leave and removed his legislative and executive authority. The Council had never before placed a tribal chairman or vice-chairman on leave, and the Navajo Tribal Code did not explicitly provide for such action. MacDonald's supporters claimed that the Council's action was improper. But there was precedent for this action because the Council had previously placed a high-ranking official on administrative leave due to suspected improprieties. 3

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    In the alternative, MacDonald's supporters argued that the Council's actions were improper because the Navajo Tribal Code, which contained a provision concerning the complete removal of a Chairman, required a two-thirds vote of the Council. In 1989, removal would have required the affirmative vote of fifty-nine out of the eighty-eight Council delegates. Although the Council had voted not to remove MacDonald but merely to place him on leave, he refused to accept the Council's actions in part because the vote for administrative leave was approved by only forty-nine votes.

    Rather than accept the Council's decision, MacDonald sought to create his own government, independent of the Council. MacDonald instructed his Vice Chairman to appoint an advisory committee to be chaired by Appellant Donald Benally. 4 Thereafter, MacDonald and Benally met almost daily to try to return MacDonald to power. Further, MacDonald and Benally attempted to govern the Navajo Nation despite the fact that the Council was still in session and had appointed an Interim Council Chairman, Leonard Haskie.

    Specifically, MacDonald directed Benally's committee to pass various resolutions to counteract all legislative action taken by the Council. These included resolutions terminating the Attorney General of the Navajo Nation for his failure to support MacDonald, rescinding all actions of the Council, directing MacDonald to exercise his authority as Chairman of the Council, and ordering the current Chairman pro tem and Vice Chairman pro tem to vacate their Council positions. Further, MacDonald instructed his staff to go to the chapter houses 5 and tell people that he had done nothing wrong, that he was still the Chairman, and that it was their government, not the government of the Council delegates.

    The Council stopped MacDonald's signatory authority over tribal bank accounts. MacDonald believed that he could better regain control of the tribe if he could control the tribe's finances. Therefore, MacDonald had Benally's committee pass a resolution that authorized members of MacDonald's staff to take control of the Division of Administration and Finance and to direct the Navajo Division of Law Enforcement to enforce the resolution. Further, MacDonald directed his staff to attempt to locate tribal bank accounts which were still open to see if they could access the funds for MacDonald's use. MacDonald also instructed William Morgan, his appointee at the finance office, not to pay Council delegates who had voted against him.

    At trial, Appellants contended that there was nothing improper in the actions taken by MacDonald and Benally's advisory committee because it was unclear who was legally in charge of the Navajo government. Thus, Appellants argued, MacDonald had as much right to run the Navajo government as did the Council. To support this contention, Appellants assert that there were conflicting rulings issued by the Navajo courts concerning the issue of MacDonald's authority to act as Chairman. The facts...

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