U.S. v. White Horse

• Decision Date: 30 December 1986
• Docket Number: No. 86-5136,86-5136
• Citation: 807 F.2d 1426
• Parties: 22 Fed. R. Evid. Serv. 340 UNITED STATES of America, Appellee, v. Jerome WHITE HORSE, Sr.; Carl Makes Him First and Eagle Hunter, a/k/a Vetal Chasing Hawk, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1426

807 F.2d 1426

22 Fed. R. Evid. Serv. 340

UNITED STATES of America, Appellee, v. Jerome WHITE HORSE, Sr.; Carl Makes Him First and Eagle Hunter, a/k/a Vetal Chasing Hawk, Appellants.

No. 86-5136.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 8, 1986.

Decided Dec. 30, 1986.

Robert C. Riter, Jr., Pierre, S.D., for White Horse.

Robert H. Anderson, Pierre, S.D., for Eagle Hunter.

Darla Pollman Rogers, Onida, S.D., for Carl Makes Him First.

Robert A. Mandel, Asst. U.S. Atty., Pierre, S.D., for U.S.

Before ARNOLD, JOHN R. GIBSON and FAGG, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Jerome White Horse, Sr., Carl Makes Him First, and Eagle Hunter appeal their convictions for knowingly converting the funds of an Indian tribal organization in violation of 18 U.S.C. Sec. 1163 (1982). Appellants' principal argument is that the trial court erred in instructing the jury as a matter of law that the Cheyenne River Sioux Tribe Telephone Authority, of which appellants were directors, is an Indian tribal organization as defined in 18 U.S.C. Sec. 1163. We conclude that the trial court committed reversible error by failing to submit for the jury's determination the question of whether the Telephone Authority is an Indian tribal organization under section 1163.

Appellants were members of the board of directors of the Telephone Authority, an entity chartered and wholly-owned by the Cheyenne River Sioux Tribe. The government contended that on several occasions each appellant received a substantial travel advance for the purpose of attending a certain convention on behalf of the Telephone Authority. In each case, no convention was attended, and the travel advance--ranging from $556 to $1650 per trip--was converted for personal use. In sum, appellants converted over $20,000 in travel advances.

Appellants were indicted by a South Dakota grand jury. The indictment consisted of numerous counts, all charging conversion of funds of an Indian tribal organization in violation of 18 U.S.C. Sec. 1163. ¹ After a three-day jury trial, each appellant was convicted on all counts charged against him at trial, and each received a prison sentence ranging from two and one-half to three and one-half years. The court also sentenced each appellant to four years probation to commence upon release from prison, with a duty to make restitution to the Telephone Authority as a condition of probation.

In order to convict appellants, the government was required to prove beyond a reasonable doubt that the Telephone Authority was an Indian tribal organization under 18 U.S.C. Sec. 1163. Contending that the Telephone Authority was not an Indian tribal organization, appellants moved for a judgment of acquittal prior to trial, at the close of the government's case, and after the presentation of all the evidence. These motions were denied. In denying appellants' motion after the close of the government's case, the trial judge stated: "I'm convinced that the Tribe has amply sufficient control and ownership to constitute the [Telephone Authority] a Tribal entity and moreover I can't see any real dispute about the facts which have to be considered. I think it's a matter of law." Trial Transcript at 237-38. The court later entered its denial of appellants' motions for judgment of acquittal in writing, stating that its denial was based on United States v. Logan, 641 F.2d 860 (10th Cir.1981), United States v. Crossland, 642 F.2d 1113 (10th Cir.1981), and United States v. Brame, 657 F.2d 1090 (9th Cir.1981).

Appellants' primary argument is that the trial judge erred by failing to instruct the jury on the law applicable to the question of whether the Telephone Authority constituted an Indian tribal organization and then refusing to allow the jury to determine from the evidence whether the Telephone Authority met the definition. The trial judge did instruct the jury that in order to reach a guilty verdict it must conclude that the government proved beyond a reasonable doubt that "the moneys, funds or assets described in the indictment belonged to an Indian Tribal organization." The judge further instructed the jury, however, that "the Cheyenne River Sioux Tribe Telephone Authority is an Indian Tribal organization as that term is used in these instructions." Consequently, the trial judge, not the jury, decided that the government had proved beyond a reasonable doubt that the Telephone Authority constituted an Indian tribal organization as defined in 18 U.S.C. Sec. 1163.

The evidence at trial indicated that the Telephone Authority has a relevant history extending to 1959. About that year, the Cheyenne River Sioux Tribe purchased three telephone exchanges that served the towns of Eagle Butte, Dupree, and Isabel, South Dakota. When the Tribe entered the telephone business, it sought funding and technical advice from the United States Rural Electrification Administration (REA). The Tribe learned, however, that the REA Act, as it existed then, prohibited loans to the Tribe, a public entity. This changed in 1973; the REA was now permitted to loan funds to public entities. The Tribe took steps to secure REA funding, but soon learned of a complication: REA notes run thirty-five years, but the Tribe was only allowed to mortgage Indian reservation land for twenty-five years. To avert this problem, the Tribe chartered, pursuant to its tribal authority, the Telephone Authority, a corporation wholly-owned by the Tribe. The REA then made loans to the Telephone Authority. The chartering document provides that the directors of the Telephone Authority are appointed and removed for cause by the Tribe, and that all net earnings for each year shall be transferred to the Tribe. The testimony at trial indicated, generally, that while the Telephone Authority is controlled by the Tribe the Telephone Authority's day-to-day activities are distinct from the Tribe.

We now consider whether the trial court erred in determining as a matter of law, and thus refusing to submit to the jury, the question of whether the Telephone Authority was an Indian tribal organization under 18 U.S.C. Sec. 1163. Because this determination concerned an element essential to conviction and required the trial judge to assess the probative value of evidence introduced at trial, we hold that the issue should have been submitted to the jury.

I.

The constitutional right to a jury trial for serious criminal offenses is both a fundamental individual right and a right "fundamental to the American scheme of justice." Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968). A necessary aspect of the right to a jury trial is that every fact essential to the conviction of an individual must be proved beyond the jury's reasonable doubt. In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970) (quoting Davis v. United States, 160 U.S. 469, 484, 493, 16 S.Ct. 353, 360, 40 L.Ed. 499 (1895)). A judge commits error when he instructs the jury as a matter of law that a fact essential to conviction has been established by the evidence, thus depriving the jury of the opportunity to make this finding. United States v. Voss, 787 F.2d 393, 398 (8th Cir.1986) (citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)). It makes no difference that the evidence supporting proof of that element is "overwhelming," id. 787 F.2d at 399, for it is the jury's role, not the judge's, to find the facts essential to a criminal conviction. United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977).

Accordingly, we must decide whether the determination that the Telephone Authority is an Indian tribal organization under 18 U.S.C. Sec. 1163 is a fact essential to conviction such that a conviction could stand only if the jury concluded that this fact was proved beyond a reasonable doubt. The parties agree that the government was required to prove that the Telephone Authority was an Indian tribal organization under section 1163. The government contends, however, that the question of whether the Telephone Authority constituted an Indian tribal organization was not a question of fact for the jury. Rather, it was a question of law properly decided by the judge. Such a conclusion, the government urges, is dictated by United States v. Briddle, 443 F.2d 443 (8th Cir.), cert. denied, 404 U.S. 942, 92 S.Ct. 291, 30 L.Ed.2d 256 (1971), United States v. Morris, 451 F.2d 969 (8th Cir.1971), and United States v. Guy, 456 F.2d 1157 (8th Cir.), cert. denied, 409 U.S. 896, 93 S.Ct. 136, 34 L.Ed.2d 153 (1972).

This court recently examined the necessity of jury instructions as they relate to the essential elements of a crime in United States v. Voss, 787 F.2d at 393. We held in Voss that jury instructions which did not require the jury to necessarily find that certain property was "used in interstate commerce" --an essential element for conviction--mandated reversal on the basis that the jury did not find that every fact essential to conviction was proved beyond a reasonable doubt. Id. at 400. Although there was "overwhelming evidence" that the interstate commerce element had been proved, error was committed because the jury, not the judge, must decide that every fact essential to conviction was established. Id. at 398-99.

We concluded in Voss that the interstate commerce element was a fact essential to conviction, solely within the jury's province, but we did not address how courts should determine whether the jury or the judge should decide an issue relating to an essential element of a crime. The government points to several occasions prior to Voss where this court has held that an issue relating to an essential element of a crime was properly decided by the judge because that issue consisted solely of a question of law. See Guy, 456 F.2d at 1163; Morris, 451 F.2d at 972-73; Briddle 443 F.2d at 447-48. These...