U.S. v. Boots
| Decision Date | 15 September 1995 |
| Docket Number | 94-1812 and 94-1813,Nos. 94-1811,s. 94-1811 |
| Citation | 80 F.3d 580 |
| Parties | UNITED STATES, Appellee, v. Francis BOOTS, Defendant, Appellant. UNITED STATES, Appellee, v. Ellwyn COOK, Defendant, Appellant. UNITED STATES, Appellee, v. Dewey LAZORE, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Appeals from the United States District Court for the District of Maine; Morton A. Brody, U.S. District Judge.
Robert A. Costantino, Abington, MA, for appellant Francis Boots.
Ronald Cohen, New York City, for appellant Ellwyn Cook.
Stephen R. Kaplan, Northampton, MA, for appellant Dewey Lazore.
Margaret D. McGaughey, with whom Jay P. McCloskey, United States Attorney, Portland, ME, was on brief for appellee.
Before STAHL, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.
In this consolidated appeal, defendants-appellants Francis Boots, Ellwyn Cook, and Dewey Lazore challenge their convictions for conspiracy, in violation of 18 U.S.C. § 371, to commit three offenses, and their convictions of the substantive offenses: 1) to devise a scheme or artifice using the wires in interstate commerce with intent to defraud Canada and the Province of Nova Scotia of excise duties and tax revenues, in violation of 18 U.S.C. § 1343; 2) to devise a scheme or artifice to deprive the residents of the Passamaquoddy Reservation in Maine of the honest services of their police chief, in violation of 18 U.S.C. §§ 1343 and 1346; and 3) to travel interstate with the intent to facilitate bribery, a crime under Maine state law, in violation of 18 U.S.C. § 1952. Judgment was entered in the United States District Court for the District of Maine following a jury trial.
Construed in the light most favorable to the government, the evidence indicates that between April and November 1992, defendants took part in a scheme to transport tobacco from a Native American reservation in upstate New York ("Akwesasne") into New Brunswick, Canada, without paying the taxes and excise duties levied upon the importation of tobacco by Canadian laws. The tobacco was transported surreptitiously into Canada through the Passamaquoddy Reservation in Pleasant Point, Maine, bypassing customs checkpoints at the Canadian border.
At the trial, Passamaquoddy Tribe member Anthony Stanley testified that on April 15 he was called to discuss some tobacco business by Beverly Pierro, a friend of his friend, Francis Boots. Later that day, Stanley approached his friend Frederick Moore, who was then serving as chief of police of the Passamaquoddy Tribe ("the Tribe") at Pleasant Point. Stanley told Moore that two Mohawks from Akwesasne were in Calais, Maine and wanted to meet with him that evening to discuss "mov[ing] tobacco." Moore (who was familiar with Akwesasne from having spent time there twelve years earlier at an Indian solidarity demonstration 1 ) agreed to meet. However, unknown to Stanley, Moore then contacted a law enforcement officer at the Bureau of Indian Affairs (BIA) for advice and received a go-ahead to see what the two Mohawks wanted.
The four--Stanley, Moore, Cook, and Lazore--met that evening at a motel. It could be found from the evidence that Cook and Lazore knew that Moore was a police chief. 2 The two said that they wanted to bring tobacco from Akwesasne to Passamaquoddy and sell it to Moore and Stanley, who would profit by selling it to established markets in New Brunswick, Canada. Moore declined to purchase their tobacco, but said he would listen further to their objectives and the price they would pay for his involvement.
Cook explained that the aim was to transport tobacco "unmolested by either government." He indicated that they could not transport the tobacco themselves because their names were known. The group proceeded to discuss law enforcement efforts on the reservation, possible border crosspoints, a storage place for the tobacco, and the potential for growth in their trading activities, with Moore's help and his recruitment of others. Cook offered to pay Moore $20 per case of tobacco transported. Moore said that he would think about the proposal and reply within a week. At the end of the meeting, he was given some tobacco which he split with Stanley.
Moore updated his contact at BIA and the next day agreed to work undercover for the Federal Bureau of Investigation (FBI). The following week he went with agents of the FBI and Royal Canadian Mounted Police (RCMP) to view possible offloading sites near St. Andrews, New Brunswick, Canada. Moore took Stanley to some of the same places later in the month.
Defendants Cook and Lazore next met with Moore, Stanley, Pierro, and her boyfriend, Jake Boots (brother of defendant, Francis Boots) on April 28, 1992. They discussed navigation routes and law enforcement concerns, among other matters. Moore told the group that he had access to the schedules and communications of most of the law enforcement agencies. They met again the next day, and Moore took Pierro and Jake Boots by boat from the Passamaquoddy Reservation to the Canadian shore while explaining points about navigation.
The first tobacco delivery was made on May 2. Defendants Cook, Lazore, and Francis Boots, along with Pierro and Jake Boots, brought 50 cases of tobacco to Stanley's house, where they met Moore. Moore supplied a boat and navigated it to St. Andrews with Stanley and Jake Boots. They met two contacts who paid them $1000, which Stanley and Moore split (Moore giving his share to the FBI). Moore made similar deliveries across the border accompanied by Stanley, Jake Boots, or both on May 11, May 16, and June 27. Moore and Stanley attempted to deliver tobacco on June 1, but returned with the cases because their Canadian contact did not show. Moore delivered tobacco on June 9, accompanied by an FBI and border agent. No deliveries were made between July and November due to the incarceration of a key contact, Stanley Johnson. Moore and Jake Boots, assisted by Pierro, made the last delivery on November 7. 3
Moore testified that, in all, almost 1850 kilograms of tobacco were transferred across the Canadian border. 4 The government's expert on Canadian taxes stated that the total per kilogram tax on tobacco was $106.47 Canadian. 5 He inferred that taxes had not been paid, because the packages were not stamped as is customarily done. The wire fraud and conspiracy counts in the indictment alleged that wires were used in furtherance of a scheme to defraud Canada and the Province of Nova Scotia of tobacco taxes due. To establish this element, the government introduced evidence of four interstate telephone conversations between Moore and Pierro from May 1992 through July 1992.
During the period of tobacco deliveries, Moore (at the FBI's request) did not disclose his role to the tribal governor, who supervised him. 6 The tribal governor learned of Moore's activity in late June, when Stanley brought it to the attention of the tribal council. Moore was suspended on June 25 without pay and was later dismissed in August for neglect of duty and insubordination. He testified that he believed the dismissal was not a result of his tobacco trading activities, but rather related to an investigation of the tribal governor.
Boots and Cook argued, in defense, that they pursued the above activities with a good faith belief in an aboriginal right to trade tobacco freely with Canada. This belief was based upon their adherence, as members of the Ganiengehaga Nation, to a constitution called the "Great Law of Peace," and on the fact that their reservation, Akwesasne, includes lands in New York State, Ontario, and Quebec. The two defendants testified that they recognized neither a formal border between the United States and Canada nor a Canadian right to tax the sacred product of tobacco, though they admitted they were aware that Canada claimed such a right and imposed such imposts. Boots maintained that he believed the shipped tobacco was intended for an Indian market in Canada. He further stated that Moore was hired because of his navigational skills and not because of his status as the Passamaquoddy police chief. Lazore did not testify.
Defendants assert on appeal that the district court erred in the following ways: 1) in refusing to dismiss the indictment or grant a judgment of acquittal, on the ground that a "scheme to defraud" Canadian authorities of duties and taxes is not cognizable under the wire fraud statute; 2) in finding the Maine bribery statute, which provided the basis for the Travel Act violation, applicable to Moore as police chief of a Native American reservation; 3) in denying a judgment of acquittal on the wire fraud counts charging a scheme to deprive Passamaquoddy Tribe members of the honest services of their police chief, despite alleged interference of the federal statute with tribal sovereignty; and 4) in refusing to include their specific version of a good faith defense in the jury instructions. They claim that their convictions of conspiracy and independent statutory violations must be reversed because of these errors. Defendant Boots also challenges his sentence. 7
The indictment charged a wire fraud violation in the conspiracy count and four independent counts upon the theory that defendants intended to defraud Canada and the Province of Nova Scotia of tobacco duties and taxes, using or causing the wires to be used interstate in furtherance of this scheme. The relevant telephone communications took place between Pierro and Police Chief Moore on May 25, May 31, June 7, and July 24, 1992. 8 The government's evidence supports a reasonable inference that the calls were made between Maine and New York, where Moore and Pierro resided.
Defendants argue that the district court erred in denying their motion to dismiss based on the...
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