U.S. v. Markiewicz

• Decision Date: 03 November 1992
• Docket Number: D,809,Nos. 798,568 and 710,709,704,s. 798
• Citation: 978 F.2d 786
• Parties: UNITED STATES of America, Appellee, v. Duane MARKIEWICZ, a/k/a Donald Markiewicz, a/k/a Don Marks; Brenda Kane; William Beglen; Otatdodah Homer; John Kane; and Linda Markiewicz, a/k/a Linda Marks, Defendants-Appellants. ockets 91-1077 to 91-1081 and 91-1135.
• Court: U.S. Court of Appeals — Second Circuit

Page 786

978 F.2d 786

UNITED STATES of America, Appellee, v. Duane MARKIEWICZ, a/k/a Donald Markiewicz, a/k/a Don Marks Brenda Kane; William Beglen; Otatdodah Homer John Kane; and Linda Markiewicz, a/k/a Linda Marks, Defendants-Appellants.

Nos. 798, 709, 809, 704, 568 and 710, Dockets 91-1077 to

91-1081 and 91-1135.

United States Court of Appeals Second Circuit.

Argued Jan. 27, 1992.

Decided Nov. 3, 1992.

Joseph Douglas Wilson, Washington, D.C., Asst. U.S. Atty., U.S. Dept. of Justice, Washington, D.C. (Frederick J. Scullin, U.S. Atty., John J. Brunetti, Asst. U.S. Atty., N.D.N.Y., of counsel), for appellee.

Bruce R. Bryan, Syracuse, N.Y., for defendant-appellant Brenda Kane.

John A. Cirando, Syracuse, N.Y., for defendant-appellant William Beglen.

William M. Kunstler, New York City, for defendant-appellant John Kane.

J. Scott Porter, Syracuse, N.Y., for defendant-appellant Otatdodah Homer.

Kate Rosenthal, Syracuse, N.Y., for defendant-appellant Linda Marks.

Douglas G. Roberts, Syracuse, N.Y., for defendant-appellant Donald Marks.

Before: WINTER, PRATT and MAHONEY, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

The six defendants before us challenge their convictions after a jury trial in the United States District Court for the Northern District of New York, Howard G. Munson, Judge.

The principal issue on this appeal is whether the district court had jurisdiction over those crimes that were committed by the Indian defendants. Five of the appealing defendants--William Beglen, Otatdodah Homer, Brenda Kane, Donald Marks and Linda Marks--are Oneida Indians. The sixth defendant, John Kane, is a Mohawk Indian. Most of the events relevant to this appeal occurred on 32 acres of the Oneida Nation located within the city limits of Oneida, New York--hereinafter referred to as "The Territory". In fall 1987 and winter 1988, the defendants were involved on one side of a bitter, intratribal struggle over several issues, including the management of a bingo hall located on The Territory.

Defendants argue that the federal government lacked jurisdiction to prosecute them. They claim that because the conduct for which they were indicted occurred on The Territory, it is only the Oneida Nation, and not the federal government, that may exercise sovereignty over their offenses. They also challenge certain aspects of the jury charge and the sufficiency of the evidence. For the reasons discussed below, we conclude that the district court properly exercised jurisdiction over all crimes charged in the indictment. However, we reverse the convictions on counts I and II because of errors in the jury charge, and remand those counts to the district court for further proceedings. We reverse Linda Marks's perjury conviction on count XII and dismiss that count. We affirm the other convictions.

I. FACTS

As the Supreme Court has noted, Indian tribes are "unique aggregations possessing attributes of sovereignty over both their members and their territory." United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975) (citing Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557, 8 L.Ed. 483 (1832)). "Although physically within the territory of the United States and subject to ultimate federal control, they nonetheless remain 'a separate people, with the power of regulating their internal and social relations.' " United States v. Wheeler, 435 U.S. 313, 322, 98 S.Ct. 1079, 1085, 55 L.Ed.2d 303 (1978) (quoting United States v. Kagama, 118 U.S. 375, 381-82, 6 S.Ct. 1109, 1112-13, 30 L.Ed. 228 (1886)). In the administration of their internal relations Indians, therefore, enjoy "broad freedom not enjoyed by any other governmental authority in this country." Duro v. Reina, 495 U.S. 676, 694, 110 S.Ct. 2053, 2064, 109 L.Ed.2d 693 (1990) (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 & n. 7, 98 S.Ct. 1670, 1675 & n. 7, 56 L.Ed.2d 106 (1978)).

A. The Oneida Nation and the New York Territory.

At trial, Carol Bacon, director of tribal relations for the Bureau of Indian Affairs ("BIA"), testified that the New York Oneidas have selected a traditional form of tribal government to administer their internal relations. She added that in July 1987 the BIA recognized the Oneidas' government for two purposes: (1) to conduct relations with the New York Oneidas so that the federal government could provide federal funds and other governmental services to The Territory, and (2) to provide groups of Oneidas a conduit through which they could communicate with the federal government.

Ultimately subject to the Nation's nine-member council of chiefs, which rules the Oneida territories in both Canada and the United States, the New York Oneidas' traditional form of government consists of several decisionmaking bodies designed to reach accord through consensus. The Oneidas convene Nation meetings that discuss matters of importance to the Oneida Nation as a whole. Men and women of The Territory also meet in separate councils to address other issues. Local residents on occasion also convene a territorial council to discuss specific problems that arise on The Territory. For some time until the events relevant to this appeal, however, the territorial council in New York State had lain dormant, only to be revived in January 1988 by some Oneidas who claimed that it was the only source of power on The Territory.

B. The Bingo Hall.

A major center of activity on The Territory was the Nation's bingo hall, which the Oneidas had opened in 1985. Several Oneidas had contributed initially to the project, including the defendant Donald Marks, who had invested $10,000. Initially, a general manager administered the bingo hall's daily operations and was also responsible for managing The Territory's other businesses. Raymond Halbritter, whom the BIA recognized in January 1988 as The Territory's representative to the federal government, was the first general manager. In February 1987 he was replaced by John Dyer, another Oneida, who, in turn, stepped down as general manager in late October 1987.

C. The Business Committee and Growing Frictions.

Dyer's responsibilities were then assumed by a three-person "business committee" made up of one member from each of the three clans--wolf, turtle, and bear--that make up the Oneida Nation.

The business committee's legitimacy and the scope of its authority soon became a source of controversy. Some Oneidas clashed with the committee over its administration of the bingo hall. Defendant William Beglen, for example, who managed the bingo hall's computer system, resigned in November 1987 after having several differences with the business committee.

Other Oneidas questioned whether the business committee had too much power over other aspects of tribal life. The committee, for example, paid out of bingo hall revenues the salaries of some tribal employees who did not work in the bingo hall.

Defendant Otatdodah Homer coordinated The Territory's cultural and recreational activities with her two sisters, Linda Thomas and Irene Hill; their salaries were paid by the business committee from bingo hall funds. Homer challenged the business committee's practice of keeping its records in an office outside The Territory, in Canastota, New York. After Homer confronted a business committee member demanding that the records be kept on sovereign Indian territory, the business committee suspended her as a cultural coordinator and withheld her salary.

These incidents increased dissension on The Territory. Several Oneidas, including Beglen, attended informal meetings to discuss the legitimacy of the business committee and the administration of the bingo hall. On December 6, a few Oneidas prevented a bingo hall employee from taking the bank deposit to a bank outside The Territory. The bingo hall then ceased operations on December 9, 1987, and turmoil on The Territory increased. At the request of defendant Donald Marks, several Oneidas from the Nation's Canadian territory appeared on The Territory in mid-December.

D. The Federal Court Civil Suit.

In January 1988 internal tribal relations continued to deteriorate. Seeking to prevent further disruption of the tribal businesses, Raymond Halbritter, the bingo hall's first general manager, filed a civil complaint on behalf of the Oneida Nation in the United States District Court for the Northern District of New York, Thomas J. McAvoy, Judge. See Oneida Indian Nation of New York v. Hill, 1988 WL 9302 (N.D.N.Y.1988). The complaint included as defendants Donald Marks and Linda Marks, as well as several of the Canadian Oneidas, who had also opposed the authority of the business committee. Judge McAvoy granted a temporary restraining order on January 11, 1988, and entered a preliminary injunction on February 2, 1988.

E. Division of the Bingo Hall Money.

Linda Marks purported to revive the tribe's dormant territorial council, of which she had been a member. Claiming that she and other territorial council members had the authority to dispense the bingo hall money, Marks and several Oneidas on January 12, 1988, the day after Judge McAvoy entered the temporary restraining order, gathered in the bingo hall to divide more than $60,000 in bingo hall revenues. Some of the charges at trial arose out of the fact that several Oneidas, including three of the defendants, received portions of the $60,000 that was divided at that meeting. Defendant Otatdodah Homer received $1,050 for her work on the recreation committee. Defendant Donald Marks received $28,000 which he claimed was payment for his initial investment in the bingo hall and also "back pay" for when he worked as a security officer for the bingo hall. Defendant William Beglen received $1,065 in "back pay" for his work as a computer systems manager. Although Linda Marks apparently did not receive money for herself, she was indicted along with the other three for conspiring to receive and receiving stolen Indian tribal funds. See 18 U.S.C....