U.S. v. Big Crow

• Decision Date: 05 May 2003
• Docket Number: No. 02-2917.,02-2917.
• Citation: 327 F.3d 685
• Parties: UNITED STATES of America, Appellee, v. Gerald `Jump' BIG CROW, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

327 F.3d 685

UNITED STATES of America, Appellee, v. Gerald `Jump' BIG CROW, Appellant.

No. 02-2917.

United States Court of Appeals, Eighth Circuit.

Submitted: February 10, 2003.

Filed: May 5, 2003.

John S. Dorsey, argued, Rapid City, SD, for appellant.

Robert A. Mandel, argued, Asst. U.S. Atty., Rapid City, SD (Mara M. Kohn and Paul Andrews, on the brief), for appellee.

Before WOLLMAN, RICHARD S. ARNOLD, and MELLOY, Circuit Judges.

WOLLMAN, Circuit Judge.

A jury convicted Gerald "Jump" Big Crow of five counts of theft from an Indian tribal organization in violation of 18 U.S.C. § 1163. The district court sentenced Big Crow to three years' probation, restitution of $59,114.53, and a special assessment of $500.00. Big Crow appeals, contending that the district court erred by denying his motion for judgment of acquittal, as his failure to pay rent did not constitute a violation of the statute under which he was charged. We reverse.

I.

The Oglala Sioux Lakota Housing Authority (Housing Authority) is an Indian tribal organization that manages and maintains 1, 808 housing units on the Pine Ridge Indian Reservation in South Dakota. The Housing Authority is governed by the Tribal Council and a Board of Commissioners (Board). The Housing Authority receives operational funding from the United States Department of Housing and Urban Development (HUD) and thus is subject to HUD regulations. The Housing Authority has established policies concerning applications for housing, certification of income, and rent payment. The rent policy states that tenants who habitually fail to pay rent shall be evicted.

The Board's views concerning the calculation of rental fees have conflicted with HUD regulations over the years. The Tribal Council enacted ordinances (later rescinded), which the Board adopted, establishing rent ceilings. Ordinance 87-05 established the rent for the year 1987. Prior to July 2000, rent for low-income housing was not capped but was based upon income level and family size, as established by federal regulation. Big Crow and others who served as leaders in tribal government believed that rental fees should be commensurate with the conditions and appraised values of the units, rather than the income level of the residents.

Big Crow, who has been active in tribal politics and has served as a member of the Tribal Council, first began leasing a low-rent unit in the early 1970s. In April 1987, he signed a lease with the Housing Authority establishing a month-to-month tenancy of Unit 729-02 (unit). The lease obligated Big Crow to pay $428.00 in rent monthly and would "be automatically terminated" if Big Crow failed to pay the rent or violated any other provision of the lease. At the time Big Crow signed the lease, ordinance 87-05 had been adopted by the Tribal Council pending HUD approval. The ordinance capped a tenant's rent at the amount paid on July 1, 1986. Big Crow wrote on the bottom of the lease agreement, "I will not pay this [rent] till HUD comes up with a desision [sic] on the resolution passed by the Tribe. 87-05." The lease also was signed by the Housing Authority Executive Director Daryl Twiss and representative Jacqueline Grey. Neither Twiss nor Grey approved Big Crow's annotation to the lease.

On April 3, 1987, HUD sent a letter notifying the Housing Authority that Tribal Resolution 87-05 was "a direct violation of federal statute." The Tribal Council consequently rescinded the resolution. In June 1987, the rental fee for the unit was increased to $472.00 per month. Big Crow, however, continued to pay the Housing Authority $114.00 each month, the amount he was paying on July 1, 1986, for a different residence. Big Crow neither sought nor received permission to pay a reduced amount of rent for the unit. Twiss ultimately instituted civil eviction proceedings in tribal court against Big Crow and seventy-nine other families who were delinquent in paying rent. A default judgment was entered against Big Crow in June 1992 ordering his eviction. On July 1, 1992, Big Crow obtained a stay of execution of the eviction because of the failure of his attorney to appear at the hearing on the default judgment. The then attorney for the Housing Authority, Jerry Matthews, continued to press Big Crow to make his full monthly payments and to become current on his back rent. Shortly thereafter, the Tribal Council fired Twiss and Matthews and suspended the members of the Board. No further tribal court action was taken to evict Big Crow or any other delinquent renter. In 1996, Fern Mousseau, a Tenant Service Representative for the Housing Authority, notified Big Crow that he owed a significant amount of money in back rent. Although she sought to effect a settlement of Big Crow's arrears, no settlement was ever reached.

By 1996, tenants of the Housing Authority owed more than $2.1 million in back rent. By 1999, Big Crow owed the Housing Authority approximately $57,000.00. On July 1, 2000, two months before Big Crow was indicted, a new rent policy took effect. Pursuant to the policy, units were appraised and rents were reduced from their former level based upon the condition of the unit. The rent for the unit in which Big Crow lived was appraised at $100.00 per month. The policy also provided that twenty percent of a tenant's debt would be forgiven for each year that the tenant paid the current rent. The rent-forgiveness provisions of the policy were rescinded following Big Crow's indictment.

The record reflects that Big Crow and his family still reside in the unit. Their lease has not been terminated by the Housing Authority, nor has Big Crow or any member of his family been evicted from the premises.

II.

On the basis of his failure to pay the required amount of rent during the years 1995 through 1999, Big Crow was indicted on five counts of theft from an Indian Tribal organization in violation of 18 U.S.C. § 1163, which provides:

Whoever embezzles, steals, knowingly converts to his use or the use of another, willfully misapplies, or willfully permits to be misapplied, any of the moneys, funds, credits, goods, assets, or other property belonging to any Indian tribal organization ... [s]hall be fined under this title, or imprisoned not more than five years, or both....

Big Crow contends that his motion for judgment of acquittal should have been granted because his refusal to pay the full amount of rent did not constitute a violation of § 1163. In response, the government contends that Big Crow's possession of the unit and his willful failure to pay the full amount of rent owed pursuant to the lease constituted the knowing conversion of the Housing Authority's property and assets in violation of the statute.

In considering a district court's denial of a motion for judgment of acquittal, we view "the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict." United States v. Barrios-Perez, 317 F.3d 777, 779 (8th Cir. 2003) (citing United States v. Harmon, 194 F.3d 890, 892 (8th Cir.1999) (citation omitted)). We will uphold the conviction unless "no reasonable jury could have found the defendant guilty beyond a reasonable doubt." Id. (quotations omitted).

"[T]he starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." United States v. Long Elk, 805 F.2d 826, 828 (8th Cir.1986) (quoting Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980)).

Section 1163 proscribes the embezzlement, theft, willful misapplication, and knowing conversion of "moneys, funds, credits, goods, assets, or other property." "At common law only tangible property or chattels were subject to the tort of conversion." United States...