Justia Native American Law Opinion Summaries

Articles Posted in White Collar Crime
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Jason Merida, the former executive director of construction for the Choctaw Nation of Oklahoma (the Nation), was convicted after a fifteen-day jury trial on six counts of a seven-count indictment. The indictment alleged Merida conspired to receive cash and other remuneration from subcontractors performing work on construction projects for the Nation, embezzled in excess of $500,000 by submitting and approving false subcontractor invoices, and willfully failed to report income on his 2009 and 2010 federal tax returns. Merida testified in his own defense at trial and, on cross-examination, prosecutors impeached his testimony using the transcript of an interview the Nation’s attorneys had conducted with him as part of a separate civil lawsuit, before the initiation of these criminal proceedings. Merida objected to the use of the transcript and moved for mistrial, arguing the transcript was protected by the attorney-client privilege and its use prejudicially damaged his credibility with the jury. The district court denied his motion for a mistrial and the jury convicted Merida on all but one count. Merida timely appealed the trial judge’s denial of his motion for mistrial. Finding no reversible error, the Tenth Circuit affirmed. View "United States v. Merida" on Justia Law

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Defendant Roger Barnett served as Second Chief of the Muscogee (Creek) Nation in 2013 and 2014. He pleaded guilty in the United States District Court for the Northern District of Oklahoma to embezzling funds from the Tribe by appropriating to his own use money withdrawn from ATM machines. The sole issue on this appeal was whether the district court properly determined the amount of money embezzled for purposes of calculating Defendant’s offense level and the amount he owed the Tribe in restitution. Defendant argued that the court’s reliance on the presentence report (PSR) and Addendum was improper because the government failed to present at sentencing any evidence of the amount of loss. The Tenth Circuit disagreed: the district court could properly rely on the PSR and Addendum because Defendant did not adequately challenge their recitations of the evidence concerning his defalcations. The only issue that he preserved for appeal was whether the recited evidence sufficed to support the court’s determination of the amount of loss, and the Tenth Circuit held that the evidence was sufficient. View "United States v. Barnett" on Justia Law

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Defendant Jeffrey Zander was convicted of two counts of mail fraud, two counts of wire fraud, one count of money laundering, and three counts of willful failure to file federal tax returns. The fraud and money laundering counts at issue in this appeal all arose out of Defendant’s scheme to divert federal grant money intended for the Paiute Indian Tribe for his own personal use. Defendant began working for the Tribe as a tribal planner in 1998, and he subsequently became the Tribe’s trust resource and economic development director. As a director, Defendant worked independently with minimal supervision. In about 2004 or 2005, Defendant suggested the Tribe seek federal grant money to fund the development of an Integrated Resource Management Plan (IRMP) for each of the Tribe's bands. The agency approved and awarded the following five IRMP development grants. Instead of hiring an outside consultant and facilitator to help develop IRMPs for each band, Defendant created false invoices and purchase orders for four fictitious companies and represented to the Tribe that these companies had provided consulting and facilitating services for the IRMP development projects. Based on these representations, the Tribe issued checks made out to these nonexistent companies and, at Defendant’s direction, either mailed the checks to post office boxes that were actually owned or controlled by Defendant or gave them to Defendant to hand-deliver to the purported companies. Defendant was sentenced to sixty-eight months of imprisonment and ordered to pay $202,543.92 in restitution to the Tribe. On appeal, he challenged his convictions on the mail fraud, wire fraud, and money laundering counts. He also challenged the length of his sentence and the amount of restitution awarded to the Tribe. Upon review, the Tenth Circuit found the trial court miscalculated defendant's sentence and restitution amount. It reversed and remanded for recalculation. The Court affirmed in all other respects, finding no reversible error. View "United States v. Zander" on Justia Law

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The Ho-Chunk Nation, a federally recognized Indian Tribe, operates casinos in Wisconsin and nets more than $200 million annually from its gambling operations. Cash Systems, one of three businesses involved in this case, engaged in issuing cash to casino customers via automated teller machines and kiosks, check-cashing, and credit- and debit-card advances. Whiteagle, a member of the Nation, held himself out as an insider and offered vendors an entrée into the tribe’s governance and gaming operations. Cash Systems engaged Whiteagle in 2002 as a confidential consultant. Cash Systems served as the Nation’s cash-access services vendor for the next six years, earning more than seven million dollars, while it paid Whiteagle just under two million dollars. Whiteagles’s “in” was his relationship with Pettibone, who had been serving in the Ho-Chunk legislature since 1995. Ultimately, Whiteagle, Pettibone, and another were charged with conspiracy (18 U.S.C. 371) to commit bribery in connection with the contracts with the Ho-Chunk Nation and substantive bribery (18 U.S.C. 666). Whiteagle was also charged with tax evasion and witness tampering. Pettibone pleaded guilty to corruptly accepting a car with the intent to be influenced in connection with a contract. Whiteagle admitted that he had solicited money and other things of value for Pettibone from three companies, but denied actually paying bribes to Pettibone and insisted that he and Pettibone had advocated for Whiteagle’s clients based on what they believed to be the genuine merits of those clients. Convicted on all counts, Whiteagle was sentenced, below-guidelines, to 120 months. The Seventh Circuit affirmed, rejecting challenges to the sufficiency of the evidence on the bribery charges, the loss calculation, and admission of certain evidence.View "United States v. Whiteagle" on Justia Law

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Appellant, the finance officer for the Standing Rock Housing Authority of the Standing Rock Sioux Tribe, pleaded guilty to theft concerning programs receiving federal funds and was sentenced to the statutory maximum of 120 months imprisonment. At issue was whether the district court committed procedural error when it departed upwards from the advisory U.S. Sentencing Guidelines range, U.S.S.G. 4A1.3, and when it considered ethnicity and other improper factors during sentencing. Also at issue was whether the sentencing was substantively unreasonable. The court held that the district court did not engage in impermissible double counting by departing upwards to criminal history category IV where the district court discussed the nature and circumstances of the offense and the history and characteristics of appellant, the need to avoid unwarranted sentencing disparities between similar defendants, and the need to provide restitution for the victims. The court also held that the sentence was substantively reasonable where any comments regarding race or national origin were not offered as an explanation for imposing sentence but reflected the district court's disagreement with appellant's counsel that the Guidelines were "fair" and that a Guidelines sentence of 70 to 87 months imprisonment was appropriate as a matter of law; where the district court's statements expressed its frustration about its inability to order restitution for an amount closer to the total loss of money rather than a comment on appellant's socio-economic status; and where the district court did not use appellant's lack of an addiction to justify the sentence, but rather to describe his state of mind as he carried out the embezzlement scheme.