United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-4141

___________

United States of America, *

*

Appellee, *

*

v. *

*

Darrell Chip Wadena, *

*

Appellant. *

___________

No. 96-4145

___________

United States of America, *

*

Appellee, *

* Appeals from the United States

v. * District Court for the District

* of Minnesota.

Jerry Joseph Rawley, Jr., *

*

Appellant. *
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___________

96-4146

___________

United States of America, *

*

Appellee, *

*

v. *

*

Rick Clark, *

*

Appellant. *

___________

Submitted: October 20, 1997

 Filed: June 10, 1998

___________

Before McMILLIAN, LAY, and BEAM, Circuit Judges.

___________

LAY, Circuit Judge.

In June 1996, Rickie Lee Clark, Jerry Joseph Rawley, Jr., and Darrell “Chip”

Wadena were convicted in federal district court of conspiracy, in violation of 18 U.S.C.

§ 371, theft or bribery concerning programs receiving federal funds, in violation of 18

U.S.C. § 666, engaging in monetary transactions in property derived from specified

unlawful activity, in violation of 18 U.S.C. §§ 1957 and 2, and willful misapplication

of tribal funds, in violation of 18 U.S.C. § 1163. In addition, Clark and Rawley were
Wadena received a sentence of 51 months in prison, Clark received a sentence 1

of 46 months in prison, and Rawley received a sentence of 37 months in prison. Each

defendant was also ordered to pay restitution, fines, and a special assessment.

For example, in the time period relevant to this case, the RTC controlled the

2

distribution of assistance funds for Band members, made housing loans to various

members, and conducted economic development projects.

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convicted of mail fraud, in violation of 18 U.S.C. §§ 1341 and 2, and conspiracy to

oppress free exercise of election rights, in violation of 18 U.S.C. § 241.1

Clark, Rawley, and Wadena appeal their convictions. On appeal, they jointly

and severally challenge the federal court’s jurisdiction to prosecute the charges against

them. They also raise several trial and procedural errors. For the reasons discussed

below, we affirm all judgments of conviction.

I. Background

The 880,000-acre White Earth Reservation (“Reservation”) is located in

northwest Minnesota. The Reservation is home to the White Earth Band (“Band”), one

of the six constituent bands of the Minnesota Chippewa Tribe. The Band consists of

22,000 members. Approximately 3,800 of the Band’s enrolled members live on the

Reservation, and the remaining members live throughout the United States. The

Reservation Tribal Council (“RTC”) (formerly known as the Reservation Business

Committee) governs all aspects of the Band, including its economic activity.2

The RTC consists of five members who serve four-year terms. The Band elects

the members by general elections held every two years. To be eligible for election, a

candidate must be an enrolled member who resides on the Reservation. During the

time frame relevant to this case, Clark, Rawley, and Wadena all served on the RTC.
Initially, the RTC appointed Jim Foster, the Band’s Executive Director, to

3

oversee the Casino construction on behalf of the RTC. Clark eventually replaced

Foster.

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Wadena served as Chairman, Rawley served as Treasurer, and Clark served as

Councilman.

The offenses for which Clark and Rawley were convicted arose from three

conspiracies: 1) the construction conspiracy; 2) the commissions conspiracy; and 3)

the election conspiracy. Wadena’s convictions arose solely from the construction

conspiracy and the commissions conspiracy. We detail these conspiracies below.

A. The Construction Conspiracy

In 1985, Congress enacted the White Earth Reservation Land Settlement Act

(“WERLSA”). 25 U.S.C. § 331. The purpose of the WERLSA was to settle numerous

claims involving large portions of land on the Reservation. Id. As part of the Act, the

United States appropriated $6.6 million “for economic development for the benefit of

the White Earth Band of Chippewa Indians.” Id. In 1991, the RTC authorized the use

of approximately $5 million of this money for construction of a casino on the

Reservation called the Shooting Star Casino (“Casino”). The Casino project involved

approximately $24 million.

The RTC appointed Clark to oversee construction of the Casino. The RTC also 3

hired Indian-owned Gordon Construction, Inc. (“Gordon”) to act as general contractor

for the project. Gordon subcontracted with Northern Drywall and Construction, Inc.

(“Northern”) for installation of drywall and various painting services. Northern did not

submit a formal bid for the subcontract. Prior to the subcontract in question, Northern

had only worked on small construction projects, and in the years prior to the Casino
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project, Northern's gross revenues never exceeded $50,000. Clark owned Northern, and

he served as its president.

Construction of the Casino began in mid-1991 and was completed within one

year. The Casino was quite successful; it created more than 1000 jobs and generated

millions of dollars in revenue. In 1993, for example, the Band grossed $50 million, a

majority of which came from the operation of the Casino. The RTC had control over the

Band’s spending of all non-federal revenue such as the revenue from the Casino.

In 1993, the civil examination unit of the Internal Revenue Service (“IRS”)

conducted an audit of Northern. During the audit, examiner Greg Nygren discovered

Northern had made payments to Wadena totaling over $428,000. Northern made the

first payment to Wadena in July 1991, about four months before the drywall subcontract

was publicized. In response to inquiries about the payments, Clark and Wadena claimed

Wadena held an undisclosed ownership interest in Northern, and the payments

represented Wadena’s share of profits from Northern. However, Wadena never

mentioned this alleged ownership interest on his 1990 financial statements or on loan

applications he submitted in 1990. Further, Northern’s accountant did not know of

Wadena’s alleged interest. Later, Clark falsified and backdated Northern’s corporate

minutes and stock certificates in an attempt to document Wadena’s ownership interest

in the company.

In 1992, Northern also made a payment to Rawley in the amount of $15,000.

Clark and Rawley claimed the payment was for consulting services. In reality, Northern

made the payment to Rawley to secure Rawley’s silence about Northern’s payments to

Wadena, who was Rawley’s long-time political rival.

The government indicted Clark, Rawley, and Wadena on August 29, 1995. The

Indictment charged defendants with eighteen counts arising from the construction of the

Casino. Count 1 alleged that all three defendants conspired to misapply tribal funds,
Count 2 charged Clark with making the $15,000 payment to Rawley, in

4

violation of 18 U.S.C. § 666(a)(2). Count 3 charged Rawley with accepting that

payment, in violation of 18 U.S.C. § 666(a)(1)(B). Count 4 charged Clark and Rawley

with money laundering and acting as principals for money laundering, in violation of

18 U.S.C. §§ 1957 and 2. Count 5 charged Wadena with accepting stock from

Northern, in violation of 18 U.S.C. § 666(a)(1)(B). Count 6 charged Clark with giving

Wadena Northern stock, in violation of 18 U.S.C. § 666(a)(2). Count 7 charged

Wadena with accepting $428,682.50 in payments from Clark, in violation of 18 U.S.C.

§ 666(a)(1)(B). Count 8 charged Clark with giving Wadena $428,682.50 in payments,

in violation of 18 U.S.C. § 666(a)(2). Count 9 charged Clark with using the mail to

procure phony bids for the Casino, in violation of 18 U.S.C. § 1341. Counts 10

through 18 charged Wadena and Clark with money laundering and acting as principals

for money laundering, in violation of 18 U.S.C. §§ 1957 and 2.

Wadena states “the purpose for creating a fishing commission was to formalize 5

the new tax exemption for income generated in relation to fishing-treaty rights.” See

Wadena Br. at 5. The payments Clark, Rawley, and Wadena received from the Fishing

Commission were tax exempt.

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in violation of 18 U.S.C. §§ 371, 666, and 1163. The object of the conspiracy was to

use tribal funds for personal gain in the construction of the Casino. Counts 2 through 18

alleged the defendants engaged in various acts of money laundering and misapplication

of funds in furtherance of the conspiracy. The jury convicted Clark, Rawley, and

4

Wadena of all counts related to the construction conspiracy.

B. The Commissions Conspiracy

The RTC members created two commissions of which they were the sole

members: the Gaming Control Commission and the Fishing Commission

(“Commissions”). The RTC members assumed no additional duties by serving on the

Commissions, and the Commissions themselves were essentially functionless.5

Nonetheless, Clark, Rawley, and Wadena received substantial payments for their
These payments were in addition to the salaries Clark, Rawley, and Wadena

6

received for service on the RTC. In 1993, Wadena’s RTC salary was $144,000,

Clark’s RTC salary was $122,000 and Rawley’s RTC salary was $102,000. The

government did not allege or charge that these salaries constituted a misappropriation

of tribal funds.

Count 20 charged Rawley with misapplying tribal funds for the purchase of an 7

all-terrain vehicle and a snow plow, in violation of 18 U.S.C. § 1163. Count 21

charged Clark with misapplying tribal funds for the purchase of a snowmobile, in

violation of 18 U.S.C. § 1163. Count 22 charged Wadena with misapplying tribal

funds for a payment on a car loan, in violation of 18 U.S.C. § 1163. Count 23 charged

Rawley with misapplying $25,000 of tribal funds, in violation of 18 U.S.C. § 1163.

Count 24 charged Wadena with misapplying $56,705 of tribal funds, in violation of 18

U.S.C. § 1163. Count 25 charged Clark with misapplying $54,500 of tribal funds, in

violation of 18 U.S.C. § 1163. Count 26 charged Rawley with misapplying $31,000

of tribal funds, in violation of 18 U.S.C. § 1163. Count 27 charged Rawley with

obtaining tribal funds by fraud and intentionally misapplying those funds, in violation

of 18 U.S.C. § 666. Count 28 charged Rawley with money laundering, in violation of

18 U.S.C. § 1957.

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service on the Commissions. At irregular intervals, and when the desire arose, Clark, 6

Rawley, and Wadena directed the issuance of tribal funds to themselves, and they

directed the Band’s accounting department to code the checks as payment for

commission meetings. These payments were made from the Band’s general treasury,

and when combined with Clark’s, Rawley’s and Wadena’s RTC salaries for the years

1990 to 1993, the payments amounted to over $1.2 million.

In the 1995 Indictment, the government charged Clark, Rawley, and Wadena with

ten counts arising from the Commissions conspiracy. Count 19 alleged the defendants

conspired to misapply tribal funds, in violation of 18 U.S.C. §§ 371 and 1163. The

object of this conspiracy was to obtain tribal funds in the form of excessive commission

payments. Counts 20 through 28 alleged various acts of misapplication of tribal funds,

theft or bribery concerning programs receiving federal funds, and money laundering.7

The jury convicted Clark and Wadena of all counts relating to the
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Commissions conspiracy. The jury convicted Rawley of all counts except for one count

of misapplying tribal funds.

C. The Election Conspiracy

In addition to the convictions set forth above, Rawley and Clark were also found

guilty under 18 U.S.C. § 241 for conspiracy to oppress free exercise of tribal election

rights. As noted above, the RTC members are elected every two years. Because most

of the Band’s members do not live on the Reservation, the majority of members vote by

absentee ballot. The Minnesota Chippewa Tribe prescribes absentee ballot voting

procedures for its constituent tribes. During the time frame relevant to this case, these

procedures provided that a person who wished to vote by absentee ballot would first

request a ballot from the Band’s authorities. The voter would then complete the ballot

and place it in an envelope upon which was printed an affidavit the voter signed and had

notarized. The voter would then send the ballot directly to election headquarters where

it would be tallied. During the 1994 election, numerous absentee ballots were fabricated

and falsely notarized. Both Clark and Rawley had a hand in improperly notarizing

absentee ballots, and Clark himself forged numerous ballots. The government

emphasizes that Clark and Rawley used the United States mail as well as notaries

licensed by the State of Minnesota to perpetuate the absentee ballot fraud.

In the 1995 Indictment, the government charged Clark and Rawley with sixteen

counts relating to the election conspiracy. The government did not charge Wadena with

any counts relating to the election conspiracy. Count 29 alleged that Clark and
Count 29 also named tribal election judge Carley Jasken, notary Peter Pequette, 8

Jr., and notary Henry Harper. The jury acquitted Jasken of all charges. Pequette

cooperated with and testified on behalf of the government. Harper pleaded guilty to

making a false writing, in violation of 18 U.S.C. § 1001.

Count 30 charged Clark with using tribal funds to pay people to assist him and 9

others in gaining re-election, in violation of 18 U.S.C. § 1163. Count 31 charged

Rawley with using tribal funds to pay people to assist him in gaining re-election, in

violation of 18 U.S.C. § 1163. Counts 32 to 41 charged Clark and Rawley with using

the mails to defraud voters, and acting as principals in that mail fraud, in violation of

18 U.S.C. §§ 1341 and 2. Counts 42 to 44 charged Harper, Pequette, and Jasken with

various violations.

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Rawley conspired to injure and oppress voters, in violation of 18 U.S.C. § 241. Section 8

241 makes it unlawful for

two or more persons [to] conspire to injure, oppress, threaten, or intimidate

any person in any State [or] Territory . . . in the free exercise or enjoyment

of any right or privilege secured to him [or her] by the Constitution or laws

of the United States, or because of his [or her] having so exercised the

same. . . .

The object of this conspiracy was to procure the election of certain candidates to tribal

positions by causing election officials to corruptly discharge their duties and by causing

fraudulent ballots to be cast. Counts 30 through 44 alleged various acts of

misapplication of funds, mail fraud, false statements, and obstruction of justice. The

9

jury convicted Rawley of all counts relating to the election conspiracy. The jury

convicted Clark of all counts relating to the election conspiracy except for one count of

using tribal funds to pay people to assist him and others in gaining re-election.

II. Overall Jurisdiction
See, e.g., United States v. Smith, 562 F.2d 453, 455-58 (7th Cir. 1977);. United 10

States v. Begay, 42 F.3d 486, 497-500 (9th Cir. 1994); United States v. Markiewicz,

978 F.2d 786, 797-803 (2d Cir. 1992); United States v. Blue, 722 F.2d 383, 384-86

(8th Cir. 1983).

Section 1152 provides: 11

Except as otherwise expressly provided by law, the general

laws of the United States as to the punishment of offenses

committed in any place within the sole and exclusive

jurisdiction of the United States, except the District of

Columbia, shall extend to the Indian country.

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Each defendant challenges his convictions on various grounds. First, we address

the defendants’ overall challenge of the federal court’s jurisdiction to prosecute them for

the charged offenses. The defendants make two basic challenges: (1) the only federal

law applicable to the defendants, as Native Americans, are those encompassed within

the Indian Country Crimes Act, 18 U.S.C. § 1152, and the Indian Major Crimes Act, 18

U.S.C. § 1153; (2) alternatively, the defendants urge, even if general federal criminal

laws do apply to them, Public Law 280 (codified at 18 U.S.C. § 1162) granted

Minnesota state courts exclusive jurisdiction over crimes involving Indians and arising

in Indian country.

The defendants’ first jurisdictional challenge is broad-based and if true, would

require this court to dismiss all charges. This particular jurisdictional claim is allegedly

derived from historic interpretation of the “patchwork” of federal statutes and early case

law affecting the sovereignty of Indian tribes in America. This area of the law is not

easily discerned and has arisen in numerous cases both in this court and other circuit

courts of appeal.10

The general laws of the United States were made applicable to Indian Country

through the Indian Country Crimes Act, 18 U.S.C. § 1152. The second paragraph of 11
This section shall not extend to offenses committed by one

Indian against the person or property of another Indian, nor

to any Indian committing any offense in the Indian country

who has been punished by the local law of the tribe, or to

any case where, by treaty stipulations, the exclusive

jurisdiction over such offenses is or may be secured to the

Indian tribes respectively.

This Act is sometimes referred to as the General Crimes Act. See United States v.

Wheeler, 435 U.S. 313, 324 (1978).

Section 1153 provides: 12

(a) Any Indian who commits against the person or

property of another Indian or other person any of the

following offenses, namely, murder, manslaughter,

kidnapping, maiming, a felony under chapter 109A, incest,

assault with intent to commit murder, assault with a

dangerous weapon, assault resulting in serious bodily injury

(as defined in section 1365 of this title), an assault against

an individual who has not attained the age of 16 years,

arson, burglary, robbery, and a felony under section 661 of

this title within the Indian country, shall be subject to the

same law and penalties as all other persons committing any

of the above offenses, within the exclusive jurisdiction of the

United States.

(b) Any offense referred to in subsection (a) of this

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the Act contains an exception to this jurisdictional grant for any crime committed by one

Indian against another. As early as 1883, the Supreme Court in Ex Parte Crow Dog, 109

U.S. 556 (1883), applied this exception and dismissed a federal prosecution for murder

of one Indian by another. In 1885, in order to curb a perceived lawlessness resulting

from the Crow Dog decision, Congress passed the Indian Major Crimes Act, 18 U.S.C.

§ 1153, which provides the federal courts with exclusive jurisdiction over certain

enumerated crimes.12
section that is not defined and punished by Federal law in

force within the exclusive jurisdiction of the United States

shall be defined and punished in accordance with the laws

of the State in which such offense was committed as are in

force at the time of such offense.

As will be discussed infra, jurisdiction over the crimes enumerated in the Indian Major

Crimes Act has now been delegated to certain states pursuant to Public Law 280.

Although not relevant here, such argument must acknowledge that in states not 13

covered by Public Law 280, the federal government could still prosecute Native

Americans under the Assimilative Crimes Act, 18 U.S.C. § 13, by utilizing state law

where no comparable federal law exists. Cf. United States v. Butler, 541 F.2d 730 (8th

Cir. 1976). However, under the Assimilative Crimes Act, the exception involving

Indian-against-Indian crimes would still apply. See, e.g., United States v. Thunder

Hawk, 127 F.3d 705, 706-08 (8th Cir. 1997).

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The Indian Major Crimes Act allowed for federal prosecution of certain

enumerated crimes, and today, the federal government has jurisdiction over fourteen

major crimes when they are committed on an Indian reservation. The Indian Major

Crimes Act does not contain an Indian-against-Indian exception. Nonetheless, the

defendants argue that as a result of the Indian Major Crimes Act, the federal government

no longer has jurisdiction under § 1152 to prosecute crimes perpetrated by one Indian

against another, unless the crime is one enumerated in § 1153. In support of this

13

argument, the defendants cite United States v. Quiver, 241 U.S. 602 (1916), wherein the

Supreme Court observed that the inclusion of certain offenses within the Indian Major

Crimes Act “carries with it some implication of a purpose to exclude others.” 241 U.S.

at 606. 

In sum, the defendants argue that the only crimes which may be the basis for

federal court jurisdiction are those within the Indian Country Crimes Act and the Indian

Major Crimes Act. As the defendants acknowledge, this court has rejected this claim
For example, in Blue, our court stated “§ 1152 and its exceptions do not extend 14

or restrict the application of general federal criminal statutes to Indian reservations.”

722 F.2d at 384. See also Stone, 506 F.2d at 563-64; White, 508 F.2d at 454-55. This

interpretation has also been made in numerous Ninth Circuit cases, most recently in

Begay, 42 F.3d at 498 (Sections 1152 and 1153 “deal[] only with the application of

federal enclave law to Indians and [have] no bearing on federal laws of nationwide

applicability that make actions criminal wherever committed.”).

In contrast, the Fourth Circuit, in United States v. Welch, 822 F.2d 460, 464 (4th

Cir. 1987), reversed a conviction under the Assimilative Crimes Act, holding that

“[w]hen there is a crime by an Indian against another Indian within Indian country only

those offenses enumerated in the Major Crimes Act may be tried in the federal courts.”

In Markiewicz, the Second Circuit cited this decision with approval, stating that this

“alternative approach . . . is more deferential to the Supreme Court’s determination in

Quiver that congress’s inclusion of certain crimes in the major crimes act ‘carries with

it some implication of a purpose to exclude other[]’ crimes.” 978 F.2d at 799, (quoting

Quiver, 241 U.S. at 606).

See United States v. Stone, 112 F.3d 971, 973 (8th Cir. 1997); Blue, 722 F.2d 15

at 384; Stone, 506 F.2d at 563-64; White, 508 F.2d at 454-55; see also United States

v. Yannott, 42 F.3d 999, 1003-04 (6th Cir. 1994); Begay, 42 F.3d at 498; United States

v. Young, 936 F.2d 1050, 1055 (9th Cir. 1991); United States v. Burns, 529 F.2d 114,

117 (9th Cir. 1975).

See Felix S. Cohen, Felix S. Cohen’s Handbook of Federal Indian Law 283

16

(Rennard Strickland et al. eds., 1982) (“Where retained tribal sovereignty in Indian

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on several occasions. See, e.g., Blue, 722 F.2d at 384-86; Stone v. United States, 506

F.2d 561, 563 (8th Cir. 1974); United States v. White, 508 F.2d 453, 454-55 (8th Cir.

1974). We recognize that when addressing claims like the one made here, our court and

other courts of appeal have issued opinions that seem confusing and somewhat

inconsistent. However, there are several reasons why we believe our earlier precedent 14

controls. 

First, many courts of appeal recognize that federal courts may enforce general 15

federal criminal laws against all persons, including Indians within Indian country.16
country is not invaded and no other particular Indian right is infringed, individual

Indians and their property are normally subject to the same federal laws as other

persons.”); Wheeler, 435 U.S. at 330 n.30 (“Federal jurisdiction also extends to crimes

committed by an Indian against a non-Indian which have not been punished in tribal

court . . . and to crimes over which there is federal jurisdiction regardless of whether

an Indian is involved, such as assaulting a federal officer.”)

Those courts reasoned that deference to tribal authority and sovereignty should 17

allow tribal laws to deal with relations among the members of the tribe. Cf. Quiver,

241 U.S. at 603-04 (It is settled policy of Congress “to permit the personal and

domestic relations of the Indians with each other to be regulated, and offenses by one

Indian against the person or property of another Indian to be dealt with, according to

their tribal customs and laws.”). 

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Federal statutes of general applicability, those in which situs of the offense is not an

element of the crime, are not encompassed within the Indian Country Crimes Act. As

a result, the Indian-against-Indian exception contained in the Indian Country Crimes Act

does not apply to federal criminal laws of general applicability.

The Second Circuit in Markiewicz, 978 F.2d 786, and the Seventh Circuit in

Smith, 562 F.2d 453, emphasized that only federal laws which seek to protect a

“peculiar” federal interest may be prosecuted. For example, in Smith, the offense was 17

charged under 18 U.S.C. § 111 for forcible assault on a federal officer. The Smith court

found that the district court had concurrent jurisdiction with the tribal court, because of

the “peculiarly Federal nature” of the assault. 562 F.2d at 458. However, this

distinction actually is difficult to apply, given the presumption of jurisdictional authority

of Congress to pass federal laws. If Congress passes any federal act, assuming it has

constitutional authority to do so, there always exists a federal concern and interest. For

this reason, identifying a federal interest in a general federal law in order to override

tribal sovereignty seemingly is redundant.
Defendants rely upon Quiver, 241 U.S. 602, as authority to exempt prosecution 18

on the theory that all of the offenses charged fall within the exclusive jurisdiction of the

tribe’s sovereignty because they relate to internal relations of the members of the tribe.

The defendants urge that Quiver applied the exception under the Indian Country Crimes

Act to a general federal law of adultery. Our research is to the contrary. The adultery

statute applied was derived from the Act of March 3, 1887, ch. 397, 24 Stat. 635,

which was directed toward the Territory of Utah. The law was later codified under

“Certain Offenses in the Territories,” ch. 13, § 316, 7 Fed. Stat. 968 (1916). Section

311 of the chapter states:

[Places within which sections of this chapter shall apply.] Except as

otherwise expressly provided, the offenses defined in this chapter shall be

punished as hereinafter provided, when committed within any Territory

or District, or within or upon any place within the exclusive jurisdiction

of the United States. 

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At the time that the Indian Country Crimes Act was passed, it may have been

assumed, as Felix Cohen points out, that federal laws outside of enclave laws were not

applicable to the Indian Country. See Cohen, supra, at 296-97. However, as Indian law

evolved, that premise was discarded. General federal criminal laws directed to all

persons became recognized as applying equally to Native Americans within Indian

Country. See Federal Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 116-17

(1960); Cohen, supra, at 284-85. 

Moreover, the Indian Country Crimes Act speaks only to the “general laws of the

United States as to the punishment of offenses committed in any place within the sole

and exclusive jurisdiction of the United States. . . .” 18 U.S.C. § 1152 (emphasis

added). Because situs of the offense is not an element of any of the statutory violations

committed by the defendants, none of the defendants claim the crimes for which they

were convicted were enclave laws. Thus, because the offenses do not fall within the

Indian Country Crimes Act, they are not subject to the Act’s exception relating to crimes

committed in Indian Country by one Indian against another.18
In other words, § 316 was an enclave statute, applying only to federally

controlled territory. Clearly Congress would have no authority to pass a general law,

such as one prohibiting adultery, outside a federal enclave.

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The Indian-against-Indian exception contained in the Indian Country Crimes Act

manifested, as Cohen observes, “a broad respect for tribal sovereignty, particularly in

matters affecting only Indians.” Cohen, supra, at 290 (citing Quiver, 241 U.S. 602, and

Crow Dog, 109 U.S. 556). However, the application of general federal laws to Native

Americans in this case does not implicate the tribal concerns of sovereignty addressed

by the Indian Country Crimes Act exception. There may be other federal-law

prosecutions that would implicate important tribal interests. However, we fail to see

how tribal interests are paramount to the federal interests implicated in the various

criminal charges involved here. Although the defendants are Native Americans, and

their conduct took place within Indian country, tribal interests do not outweigh the

federal interest in prohibiting offenses such as mail fraud, money laundering, bribery, and

conspiracy. Moreover, Indian tribes are not totally independent of the United States.

Federal jurisdiction over the offenses committed here is imperative for the protection of

all Native Americans who are U.S. citizens living on Indian reservations. 

Public Law 280

The alternative jurisdictional argument raised by the defendants may be summarily

rejected. Defendants assert that even if general federal laws are applicable, under Public

Law 280, the federal government has surrendered to the State of Minnesota its criminal

jurisdiction over all federal offenses committed on Indian lands. As the defendants

acknowledge, this court has rejected this exact argument in two recent cases: Stone, 112

F.3d 971, and United States v. Pemberton, 121 F.3d 1157 (8th Cir. 1997), cert. denied,

___ U.S. ____, 118 S. Ct. 1046 (1998). As this court observed in Pemberton: “Crimes

of general applicability—that is, actions that Congress has declared illegal regardless of

where they occur—are not affected by the
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enactment of Public Law 280 and remain within the subject-matter jurisdiction of the

federal courts.” 121 F.3d at 1164.

III. Jurisdictional Challenge to the Election Conspiracy

Clark and Rawley do not challenge the sufficiency of the evidence to sustain their

convictions relating to the election fraud, and the evidence of their guilt is overwhelming.

However, both Clark and Rawley vigorously assert that the exercise of federal criminal

jurisdiction over the conspiracy to commit election fraud is not authorized by Congress

and seriously impinges upon tribal sovereignty. As such, they urge the election was

within the exclusive jurisdiction of the Tribal Court. They conclude that under the

principles enumerated in Quiver and Crow Dog, federal courts lack jurisdiction over

matters such as tribal elections that relate to the internal affairs of the tribe. 

The district court held that the conspiracy law under § 241 is a law of general

applicability because the situs of the offense—in this case, voter fraud—is in no way an

element of the crime. In other words, the district court’s rationale was that Congress has

declared any conspiracy which violates federally protected rights a crime regardless of

where the offense occurs. And, as we have previously discussed, laws of general

applicability “apply” with equal force when committed by a Native American on a

reservation. See Part II, supra.

Clark and Rawley also challenge federal jurisdiction on the ground that the tribe

exists as an independent nation over which the federal government has no jurisdiction

concerning a local tribal election. There is no question that Indian tribes are quasisovereigns and enjoy rights and privileges of self-government and local culture.

However, the Supreme Court observed early on in Talton v. Mayes that while Indian

Nations are "possessed of . . . attributes of local self government, when exercising their

tribal functions, all such rights are subject to the supreme legislative authority of the
Section 1302(8) of the ICRA states in relevant part: “No Indian tribe in

19

exercising powers of self-government shall . . . deny to any person within its

jurisdiction the equal protection of its laws or deprive any person of liberty or property

without due process of law.” (emphasis added). As the Court in Santa Clara points

out, this is not deemed to explicitly identify with the Bill of Rights or the Fourteenth

Amendment of the U.S. Constitution. See 436 U.S. at 63 n.14.

In § 1302(8), Congress offered reassurance that no tribal government would

20

deny to any members the equal protection of the Tribe’s laws. Furthermore, the ICRA

does not include other constitutional freedoms, such as the prohibition as to the

establishment of religion, the right of counsel, etc. See 436 U.S. at 62-63.

-18-

United States.” 163 U.S. 376, 384 (1896) (citing Cherokee Nation v. Southern Kansas

Ry. Co., 135 U.S. 641 (1890)). In this regard, tribal sovereignty “exists only at the

sufferance of Congress and is subject to complete defeasance.” Wheeler, 435 U.S. at

323. The Supreme Court emphasized the dominance of congressional authority over

Indian tribes in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), observing: “As the

Court in Talton recognized . . . Congress has plenary authority to limit, modify or

eliminate the powers of local self-government which the tribes otherwise possess." 436

U.S. at 56 (also citing United States v. Kagama, 118 U.S. 375, 379-81, 383-84 (1886);

Cherokee Nation v. Hitchcock, 187 U.S. 294, 305-07 (1902)). The Santa Clara court

went on to emphasize that the passage of the Indian Civil Rights Act, 25 U.S.C. §§

1301-03 (“ICRA”), serves as an example of that authority. The Court summed up this 19

legislation by observing: “In 25 U.S.C. § 1302, Congress acted to modify the effect of

Talton and its progeny by imposing certain restrictions upon tribal governments similar,

but not identical, to those contained in the Bill of Rights and the Fourteenth

Amendment.” 436 U.S. at 57. 20

The ICRA was passed with the declared purpose “to secur[e] for the American

Indian the broad constitutional rights afforded to other Americans.” Santa Clara, 436

U.S. at 61 (quoting S. Rep. No. 841, 90th Cong. 1st Sess. 5-6 (1967)). The passage of

the ICRA resulted from congressional concern in the early 1960s that individual
-19-

Native Americans had no constitutional rights under their tribal governments. See Alvin

J. Ziontz, In Defense of Tribal Sovereignty: An Analysis of Judicial Error in

Construction of the Indian Civil Rights Act, 20 S.D. L. Rev. 1, 1-2 (1975). The

congressional subcommittee first considering the legislation “heard a great deal of

testimony from Indians complaining of violations of constitutional rights by the

governing bodies of Indian tribes.” Id. at 2. These allegations included incidents such

as harassment and detention of political dissidents, corruption of tribal courts, and—

notably—election fraud. See Joseph de Raismes, The Indian Civil Rights Act of 1968

and the Pursuit of Responsible Tribal Self-Government, 20 S.D. L. Rev. 59, 73 (1975).

Most commentators agree that in enacting the ICRA, Congress “sought to achieve a

balance between individual rights of tribal members on the one hand and preservation

of tribal autonomy, Indian customs, law and culture on the other.” Ziontz, supra, at 2;

see also Cohen, supra, at 666-69. Initially, a bill was contemplated to impose the same

limitations on tribes as were imposed on the federal government in regard to civil rights.

Cohen, supra, at 666. The end result was an act with only some of those restrictions.

Id. From this reading of the legislative history, it is clear that Congress was sensitive to

the question of tribal sovereignty when drafting the ICRA. 

Section 241 prohibits a conspiracy to deny any person the enjoyment of a right or

privilege secured by the Constitution or laws of the United States. It is the government’s

position that the conspiracy under § 241 was specifically directed to a law of the United

States, i.e., violation of § 1302 of the ICRA. Under this theory, we must first address

whether § 241 specifically applies to fraud in a tribal election. 

Citing an eighty-year-old case, United States v. Bathgate, 246 U.S. 220, 225

(1918), the defendants argue that federal election fraud statutes do not extend to fraud

in a general state election, and therefore should not apply to a tribal election either. But

since the Bathgate decision, the Supreme Court has construed § 241 to include all rights

or privileges secured by the Constitution or laws of the United States. See United States

v. Guest, 383 U.S. 745, 753 (1966) (Section 241 protects equal protection rights
-20-

under the Fourteenth Amendment.). More specifically, the court in Anderson v. United

States, 417 U.S. 211, 226 (1974) stated that “[t]he specific intent required under § 241

is not the intent to change the outcome of a federal election, but rather the intent to have

false votes cast. . . .” Subsequent to Anderson, the application of § 241 to fraud in nonfederal elections has been endorsed by this circuit, as well as several others. See United

States v. Townsley, 843 F.2d 1070, 1080 (8th Cir.), vacated in part on other grounds,

856 F.2d 1189 (8th Cir. 1988); United States v. Howard, 774 F.2d 838, 841 (7th Cir.

1985); United States v. Stollings, 501 F.2d 954, 955 (4th Cir. 1974). 

In Townsley, our court specifically held that even though the objective of the

conspiracy was to influence a local rather than federal election, that did not defeat the

specific intent necessary to establish a conspiracy against the rights of citizens under §

241. 843 F.2d at 1080. The court stated: “Regardless of what our view might have been

were we writing on a clean slate, it is now clear that ‘[t]he specific intent required under

§ 241 is not the intent to change the outcome of a federal election, but rather the intent

to have false votes cast . . . .’” Id. (quoting Anderson, 417 U.S. at 226). In this case,

Rawley and Clark were accused of conspiring to fraudulently cast ballots in a tribal

election. Under Anderson, as long as the purpose of the conspiracy was the violation

of a federal law, the conspiracy is unlawful under federal law. See 417 U.S. at 226.

The specific question we must then address is whether the ICRA, as a law of the

United States, contains a prohibition which allows enforcement of § 241 under general

principles of conspiracy law. The ICRA specifically proscribes a violation of the Tribe’s

equal protection laws, as well as other constitutional rights of the Tribe. See § 1302(8).

Article XIII of the Constitution of the Minnesota Chippewa Tribe reads:

All members of the Minnesota Chippewa Tribe shall be accorded by the

governing body equal rights, equal protection, and equal opportunities to

participate in the economic resources and activities of the Tribe, and no
-21-

 member shall be denied any of the constitutional rights or guarantees

enjoyed by other citizens of the United States, including but not limited to

freedom of religion and conscience, freedom of speech, the right to orderly

association or assembly, the right to petition for action or the redress of

grievances, and due process of law. 

(emphasis added). By direct incorporation, these rights are now explicitly protected by

the ICRA. We hold they are enforceable under § 241, as a general federal law. 

In addressing ballot-box stuffing in federal or state elections, the Seventh Circuit

observed in United States v. Olinger, 759 F.2d 1293, 1303 (7th Cir. 1985):

[T]he right of suffrage, whether in an election for state or federal office, is

one that qualifies under the Equal Protection Clause of the Fourteenth

Amendment for protection from impairment, “when such impairment

resulted from dilution by a false tally, cf., United States v. Classic, 313

U.S. 299 (1941); or by a refusal to count votes from arbitrarily selected

precincts, cf., United States v. Mosley, 238 U.S. 383 (1915), or by a

stuffing of the ballot box, cf., Ex Parte Siebold, 100 U.S. 371 (1879);

United States v. Saylor, 322 U.S. 385 (1944).” Baker v. Carr, 369 U.S.

186, 208 and 247-48 (1962). This was bluntly stated in Reynolds v. Sims,

377 U.S. 533, 554-55 (1964): “[T]he Constitution of the United States

protects the right of all qualified citizens to vote, in state as well as in

federal elections. . . . The right to vote can neither be denied outright, . .

. nor diluted by ballotbox stuffing. . . .

We believe it is clear this protection against voter fraud has been carried over into the

ICRA, as it is applies to the facts of this case. This court previously recognized the oneman-one-vote principle applies to tribal elections through the ICRA. See White Eagle

v. One Feather, 478 F.2d 1311, 1314 (8th Cir. 1973); Daly v. United States, 483
These cases are pre-Santa Clara, recognizing an implicit right to civil action

21

under the ICRA against tribal officers and tribal councils. Santa Clara rejected the

rights of tribal members to bring such civil suits in federal court, and also established

that tribal counsels enjoy sovereign immunity from suit. See infra. We cite these preSanta Clara cases simply as a recognition of the one-man-one-vote principle included

in the ICRA.

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F.2d 700, 704-05 (8th Cir. 1973); Means v. Wilson, 522 F.2d 833, 839 (8th Cir. 1975).21

The defendants urge that these cases have all been implicitly overruled by the

Santa Clara decision. In Santa Clara, a female tribe member brought an action for

injunctive and declaratory relief against the Pueblo tribal government, alleging that a

Pueblo ordinance which denied tribal membership to children of female members who

married outside the tribe was a violation of equal protection under the ICRA. 436 U.S.

at 52-53. The Supreme Court found that suits against the tribe under the ICRA were

barred by the tribe’s sovereign immunity, because nothing on the face of the ICRA

purported to subject the tribes to the jurisdiction of federal courts in civil actions for

declaratory or injunctive relief. Id. at 58-59. Additionally, the Court found that the

ICRA did not impliedly authorize a private right of action against the Pueblo

government. Id. at 72. 

There are several reasons why the Santa Clara ruling does not control this case.

First, in the case at hand, the government is asserting jurisdiction under § 241, not under

the ICRA. The only reason the ICRA needs to be referenced at all in this case is to

establish that a right to be free from fraud in a tribal election does indeed exist under the

laws of the United States. There is nothing in the language of Santa Clara to indicate

that the rights under the ICRA are nonexistent or in any way invalid. Instead, Santa

Clara dealt with how those rights may be enforced, and concluded they could not be

enforced through a private right of action, in a civil lawsuit. Nothing in Santa

Clara addresses the U.S. government’s right or obligation to assume
-23-

criminal jurisdiction when one of its laws of generally applicability is violated.

Additionally, tribal immunity is not at issue in the present criminal case.

Second, in Santa Clara the Court was faced with a challenge to a duly enacted

ordinance of the tribal government. In such a case, the threat to tribal sovereignty is

great because a federal court would be asked to sit in judgment of legislation enacted by

a legitimate tribal government. In this case, the question is whether jurisdiction can be

asserted over the illegitimate, criminal action of fraud in a tribal election. Unlike Santa

Clara, there is no challenge to the legitimate actions of the tribe or its representatives.

The charge is directed toward the individual members of the RTC who conspired to

deprive the members of the Band of their civil rights guaranteed by the ICRA. The

Band’s right to self-determination, which the court sought to protect in Santa Clara, is

not being threatened by ensuring that voters are not defrauded. In fact, the Band’s right

to free and open elections is vindicated by the present criminal action.

Third, in Santa Clara, the Court stressed that tribal courts are available to

vindicate rights created by the ICRA and are the appropriate forums to do so. 463 U.S.

at 65. But again, this is stated in the context of a civil action. In a criminal context —

when the entire tribal system allegedly is controlled by a few corrupt individuals— there

is no effective tribal forum available to protect an individual tribal member’s civil rights.

Finally, even if jurisdiction in this case was asserted under the ICRA, Santa Clara

would not be dispositive, because the absence of a private right of action does not mean

absence of criminal jurisdiction. Rawley argues that “no voter could be a victim of a §

241 conspiracy if that voter could not enforce his or her voting rights under federal law

in a civil action in a federal court.” Rawley Br. at 28. If by this the defendant means to

imply that criminal jurisdiction cannot exist without a corresponding private right of

action, his premise is incorrect. Courts repeatedly have held that there is no private

right of action under § 241, even though the statute allows
-24-

federal authorities to pursue criminal charges. See, e.g., Cok v. Cosentino, 876 F.2d 1,

2 (1st Cir. 1989) (“Only the United States as prosecutor can bring a complaint under 18

U.S.C. §§ 241-242 . . . These statutes do not give rise to a civil action for damages.”);

Lerch v. Boyer, 929 F. Supp. 319, 322 (N.D. Ind. 1996) (Federal criminal statute

governing conspiracies against civil rights did not provide for private right of action).

There are numerous other criminal statutes which the courts have found do not imply a

private right of action, including the Securities and Exchange Act, see Central Bank v.

First Interstate Bank, 511 U.S. 164, 190-91 (1994); the Ashurst-Sumners Act governing

shipment of prisoner-made goods in interstate commerce, see McMaster v. Minnesota,

30 F.3d 976, 981-82 (8th Cir. 1994); the federal wire fraud statute, see Official

Publications Inc. v. Kable News Co., 884 F.2d 664, 667 (2d Cir. 1989); and the Federal

Elections Campaign Act, see Cort v. Ash, 422 U.S. 66, 79-84 (1975). 

For these reasons, Clark and Rawley cannot rely on the Santa Clara decision to

support their argument that federal jurisdiction under § 241 cannot be asserted. The

decision regarding private rights of action brought under the ICRA against a tribal

government does not address the question of criminal jurisdiction asserted in this case.

In Stone, this court recently recognized that tribal sovereignty is “necessarily

limited” and “must not conflict with the . . . overriding sovereignty of the United States.”

112 F.3d at 974 (quoting United States v. Sohappy, 770 F.2d 816, 819 (9th Cir. 1985)).

“Federal laws of general applicability [such as § 241] ‘are applicable to the Indian unless

there exists some treaty right which exempts the Indian from the operation of the

particular statutes in question.’” Id. (quoting Burns, 529 F.2d at 117). No such treaty

right—to be free to conduct fraudulent elections against their people—is asserted here

by the defendants.

 Contrary to the Clark and Ramsey’s argument, we find there is no reason why

federal criminal jurisdiction over election fraud would work to undermine the

sovereignty of the tribe or its political integrity. First, no tribal custom or tradition is
-25-

being threatened by the enforcement of criminal conspiracy laws. There is no tribal

custom or tradition of the Band of fraudulently using the election system to maintain

positions of power for a few corrupt individuals. 

Second, as the Supreme Court stated in Santa Clara, tribal courts are the

preferable forum to resolve most issues arising out of the rights granted by the ICRA.

436 U.S. at 65-66. This allows legitimate tribal governments to shape their own internal

policy and assert their right to self-determination, and at the same time provides

individual Native Americans a forum to air their grievances. However, tribal members

are not able to practice self-determination when, as is alleged here, a few corrupt

individuals effectively control the entire tribal system. No purpose of tribal autonomy

is served by allowing a corrupt, unrepresentative system to continue unabated.

Finally, it is relevant to note that tribal governments are dependent

sovereigns—not independent foreign ones. As part of this dependent status, the U.S.

government serves as a trustee and has a direct responsibility as a trustee to protect the

civil rights granted by Congress to the Native Americans living on the reservations. We

believe failure of the United States to assert criminal jurisdiction over activity on a

reservation when the tribal government no longer operates legitimately would be an

abrogation of the U.S. government’s trustee relationship with tribes such as the

Chippewa. We thus conclude that Clark and Rawley may be prosecuted in federal court

under § 241 because such conspiracy encompassed a violation of the ICRA, a law of the

United States.
Rawley does not contest the joinder of the counts charged in this case. 22

-26-

IV. Defendants’ Other Challenges

A. Joinder and Severance

Before trial, Clark and Wadena moved to sever Counts 1 through 28 (the non- 22

election counts) from Counts 29 through 44 (the election counts), alleging the two groups

involved separate and unrelated acts and transactions and were improperly joined. The

defendants also argued they would be prejudiced by the joinder of the offenses because

during trial, such joinder would allow the introduction of evidence that is not relevant to

some of the conspiracies. For example, the defendants asserted that evidence related to

the election fraud conspiracy is not relevant to the conspiracies involving the Casino or

the Commissions. The government asserted joinder was proper, alleging Clark, Rawley,

and Wadena joined in multiple conspiracies to misapply tribal funds for their personal

use.

Following a hearing on the defendants’ pre-trial motion for severance, the district

court referred the matter to a federal magistrate judge for a report and recommendation.

In his report and recommendation, the magistrate judge concluded that on the face of the

Indictment, the government did not allege a “single, common purpose connecting the

election fraud allegations to the casino and fishing commission allegations.” United

States v. Wadena, Crim. No. 3-95-102 (D. Minn. Jan. 24, 1996) (magistrate judge’s

report and recommendation on defendants’ pretrial motions). The magistrate judge

recommended that the district court sever Counts 1 through 28 from Counts 29 through

44. Id.
The Honorable Michael J. Davis, United States District Judge for the District 23

of Minnesota.

Rule 8 provides: 24

(a) Joinder of Offenses. Two or more offenses may be charged in the

same indictment or information in a separate count for each offense if the

offenses charged, whether felonies or misdemeanors or both, are of the

same or similar character or are based on the same act or transaction or

on two or more acts or transactions connected together or constituting

parts of a common scheme or plan.

-27-

The district court disagreed, concluding the Indictment alleged three conspiracies 23

that were a part of a series of acts or transactions, and joinder was proper. United

States v. Wadena, No. 3-95-102 (D. Minn. April 11, 1996) (order adopting portions of

magistrate judge’s report and recommendation). The court also noted that although “a

joint trial may result in evidence being admitted against one defendant that would

otherwise be irrelevant in the trial of a co-defendant, the Court finds that any prejudice

that may result may be avoided through limiting instructions to the jury.” Id. The

district court denied the defendants’ motion to sever, finding severance was not

warranted. Id. During trial, the district court continued to deny defendants’ motions to

sever.

In the present appeal, Clark and Wadena dispute the district court’s joinder of

Counts 1 through 28 with Counts 29 through 44. Alternatively, they dispute the district

court’s denial of their motion to sever the counts. We address the defendants’ claims

separately.

1. Joinder under Federal Rule of Criminal Procedure 8

Federal Rule of Criminal Procedure 8 establishes the requirements for joinder of

offenses or defendants in the same indictment. Under Rule 8(b), defendants are 24
(b) Joinder of Defendants. Two or more defendants may be charged in

the same indictment or information if they are alleged to have participated

in the same act or transaction or in the same series of acts or transactions

constituting an offense or offenses. Such defendants may be charged in

one or more counts together or separately and all of the defendants need

not be charged in each count.

Fed. R. Crim. P. 8.

-28-

properly joined “if they are alleged to have participated in the same act or transaction or

in the same series of acts or transactions constituting an offense or offenses.” Fed. R.

Crim. P. 8(b). Generally, the “same series of acts or transactions” means acts or

transactions that are pursuant to a common plan or a common scheme. See United

States v. Jones, 880 F.2d 55, 61 (8th Cir. 1989). “[T]he defendants need not be charged

in each count.” Fed. R. Crim. P. 8(b). An indictment must reveal on its face a proper

basis for joinder. See United States v. Bledsoe, 674 F.2d 647, 655 (8th Cir. 1982).

This Court reviews de novo claims of misjoinder. An error involving misjoinder

“‘affects substantial rights’ and requires reversal only if the misjoinder results in actual

prejudice because it ‘had substantial and injurious effect or influence in determining the

jury’s verdict.’” United States v. Lane, 474 U.S. 438, 449 (1986) (quoting Kotteakos

v. United States, 328 U.S. 750, 776 (1946)).

a. Propriety of Joinder with Respect to Clark

Clark asserts joinder under Rule 8(b) was improper because the Indictment alleges

three separate conspiracies as opposed to one overall scheme. Clark contends the

government links the three conspiracies solely through an “overlap in personnel” and a

“common objective of making money,” and such connections are an insufficient basis

for joinder. See Clark Br. at 39-40. Clark also claims the government’s
Clark’s contentions that joinder is improper because the election conspiracy

25

came later than the other two conspiracies, and because he ran unopposed in the

election, obfuscates the issue and ignores the singular and common purpose of Clark’s

involvement in the three conspiracies.

-29-

assertions that Clark, Rawley, and Wadena engaged in the non-election conspiracies to

misapply tribal funds, and Clark and Rawley engaged in the election conspiracy to

further that objective, are “unsupported by the indictment and factually impossible.” Id.

at 40-41. This is because Clark ran unopposed in the 1994 election, and according to

the Indictment, the non-election conspiracies were complete in March 1994—three

months before the June 1994 election.

We disagree with Clark’s contentions. In this case, the government charged Clark

with all of the offenses relating to both the non-election conspiracies and the election

conspiracy. The government asserted Clark joined in the non-election conspiracies to

misapply tribal funds for his personal gain. The government also contended Clark joined

in the election conspiracy to ensure his and others’ elections and his continued access

to tribal funds. On its face, the Indictment alleges more than a mere overlap in

personnel and the common objective of making money. We deem it clear that the

Indictment alleges Clark participated in a series of acts or transactions with the sole

purpose of furthering a common scheme of using his and others’ positions in tribal

government to access tribal funds and misapply those funds for his personal gain. Thus,

joinder of all counts was proper under Federal Rule of Criminal Procedure 8(b).25

Moreover, were we to find joinder improper with respect to Clark, such error

would not require reversal. See Lane, 474 U.S. at 449. Clark contends reversal is

required because he has made a showing that there was a misjoinder that had a

substantial and injurious effect on the jury’s verdict. Specifically, Clark claims the

government used a “regrettable parade of cumulative witnesses,” most of whom merely
Like Clark, Wadena also asserts the three alleged conspiracies were unrelated 26

to one another, and the government’s attempt to link the three conspiracies through an

“overlap in personnel” and a “common objective of making money” is an insufficient

basis for joinder. As stated above, we reject this allegation.

-30-

testified that they did not vote in the last tribal election, to show his bad character and

impermissibly influence the jury’s determination of guilt with respect to the non-election

charges. See Clark Br. at 42.

We disagree with Clark’s contentions for several reasons. First, during trial, the

government presented evidence of the charged conspiracies in three discrete phases.

Second, although the government presented numerous witnesses who testified they did

not vote in the last tribal election, it is difficult to see how this testimony, which was

specific to the election conspiracy, influenced the jury’s findings with respect to the

construction conspiracy and Commissions conspiracy. Third, the district court instructed

the jury that each defendant was entitled to be treated separately, and the jury must

return a separate verdict for each defendant and for each crime charged. See, e.g., Jury

Inst. 12, United States v. Wadena, No. 3-95-102 (D. Minn. June 24, 1996). The jury

ultimately acquitted one defendant of all charges and acquitted Clark and Rawley of one

charge each. Finally, the government presented potent evidence of Clark’s guilt of the

charges for which he was convicted. In sum, we conclude that any alleged misjoinder

did not have a substantial and injurious effect or influence on the jury’s verdict with

respect to Clark. See Lane, 474 U.S. at 449.

b. Propriety of Joinder with Respect to Wadena

Like Clark, Wadena argues joinder in this case was improper. In particular,

Wadena claims that because the government did not allege that he was in any way

involved in the election conspiracy, he should not have been tried with the other

defendants who were alleged to have participated in all three conspiracies. For the 26
Significantly, one election conspiracy witness who did mention Wadena

27

indicated it was Wadena who called the sheriff when he learned from a government

investigator that certain election documents under investigation may have been

deliberately shredded. 

-31-

reasons discussed below, we conclude that even if misjoinder occurred with respect to

Wadena, any such error did not have a substantial and injurious effect or influence on

the jury’s verdict, and reversal is not required.

Wadena alleges the government turned his trial into an “election fraud circus” by

calling 136 election fraud witnesses to the stand, introducing nearly 600 election fraud

exhibits, and stating in its closing argument that all the defendants were guilty of

“controlling the ballot box in order to control the cashbox.” See Wadena Br. at 22-23.

Wadena asserts he suffered “overwhelming” prejudice in this “politically charged” trial.

Id. at 23.

We disagree. As noted above, the government presented evidence relating to the

three conspiracies in three distinct phases. When the government referred to the election

conspiracy in its opening statement, case-in-chief, and closing argument, it specifically

referred to the involvement of Clark and Rawley in that conspiracy. While Wadena

correctly asserts that the government presented numerous witnesses who testified in the

election conspiracy phase of the trial, as we stated above with respect to Clark, the

majority of those witnesses simply testified they did not actually vote in the 1994

election even though ballots were cast in their names. Further, a large portion of the 27

exhibits presented during the election conspiracy phase of the trial consisted solely of

various absentee ballots. Overall, we do not believe the evidence presented in relation

to the election conspiracy caused the jury to convict Wadena of the charges arising from

the other two conspiracies.
Rule 14 provides: 28

If it appears that a defendant or the government is prejudiced by a joinder

of offenses or of defendants in an indictment or information or by such

joinder for trial together, the court may order an election or separate trials

of counts, grant a severance of defendants or provide whatever other

relief justice requires. In ruling on a motion by a defendant for severance

the court may order the attorney for the government to deliver to the court

for inspection in camera any statements or confessions made by the

defendants which the government intends to introduce in evidence at the

trial.

Fed. R. Crim. P. 14.

-32-

Wadena also alleges he suffered prejudice because the district court failed to

instruct the jury not to consider the extensive election fraud evidence against him. See

Wadena Br. at 24, n.15. This argument is specious. Perhaps the district court did not

specifically tell the jury not to consider any election fraud evidence against Wadena.

However, in essence the district court told the jury to do the same thing when, as noted

above, it admonished the jury to treat each defendant separately and return a separate

verdict for each defendant and for each crime charged. Finally, the government

presented strong evidence of Wadena’s guilt in the offenses relating to the construction

conspiracy and the Commissions conspiracy. From our de novo review of the record,

we conclude that any misjoinder with respect to Wadena was harmless, and reversal is

not required. See Lane, 474 U.S. at 449.

2. Severance under Rule 14

Federal Rule of Criminal Procedure 14 allows the trial court to order severance

even if joinder was proper under Rule 8(b). The decision to sever is within the sound 28

discretion of the trial judge. See Jones, 880 F.2d at 61 (citing United States v. Adkins,

842 F.2d 210, 212 (8th Cir. 1988)). “We reverse a denial of a motion to sever only
-33-

when the defendant shows an abuse of discretion that resulted in severe prejudice.”

United States v. Crouch, 46 F.3d 871, 875 (8th Cir. 1995). “Severe prejudice occurs

when a defendant is deprived of an appreciable chance for an acquittal, a chance that

[the defendant] would have had in a severed trial.” United States v. Koskela, 86 F.3d

122, 126 (8th Cir. 1996).

a. Propriety of the Refusal to Sever with Respect to Clark

Clark contends the district court’s refusal to sever the offenses and the defendants

was a failure to follow Rule 14 and constitutes an abuse of its discretion. Clark argues

this refusal to sever the election counts from the non-election counts severely prejudiced

him. In support of this assertion, Clark argues the trial was complex and lengthy, and

the government’s evidence relating to the election conspiracy overwhelmed and confused

the jury, prevented the jury from compartmentalizing the evidence, and tainted its

verdict. He argues the district court’s jury instructions failed to “sufficiently negate the

harmful error in this case.” Clark Br. at 44.

From our review of the record, and for the reasons discussed above with respect

to joinder, we conclude the district court’s refusal to sever did not deprive Clark of an

appreciable chance of acquittal. Therefore, the district court’s refusal to sever was

within its discretion. See Crouch, 46 F.3d at 875; Koskela, 86 F.3d at 126.

b. Propriety of Refusal to Sever with Respect to Wadena

Wadena contends that when the district court repeatedly refused to sever his trial

from that of the other defendants, it abandoned its duty under Rule 14 and abused its

discretion. In support of this argument, Wadena makes essentially the same contentions

he made with respect to joinder. From our review of the record, and for the reasons

discussed above with respect to joinder, we conclude the district court’s
-34-

refusal to grant Wadena’s Rule 14 motion to sever did not cause him severe prejudice.

See Crouch, 46 F.3d at 875; Koskela, 86 F.3d at 126.

B. Alleged Misuse of Civil IRS Audit

Clark and Wadena contend that in late 1993, the IRS conducted a civil audit of

Northern with the express and undisclosed purpose of gathering information for a

criminal investigation. Specifically, they allege the government’s chief investigator in

this case, Agent Michael Nelson of the IRS’ Criminal Investigation Division (“CID”),

had knowledge that IRS auditors were preparing to conduct a civil audit at the time the

government was conducting a criminal investigation into the same matters to be

examined by the civil audit. As supporting evidence of this contention, Clark and

Wadena assert that in early November 1993, before the IRS formally notified defendants

of the upcoming civil audit, Agent Nelson asked Greg Nygren, an IRS representative

working on the civil audit, to fax him a copy of a past tax return of Wadena’s. The civil

audit was not referred to the CID until 1994.

Clark and Wadena complain the IRS’s simultaneous investigations violated their

Fourth and Fifth Amendment rights. During trial, Clark and Wadena made various

motions to suppress the evidence obtained from the civil audit and any evidence derived

therefrom. The district court denied the motions. On appeal, Clark and Wadena claim

the district court erred in denying their motions. We review for clear error the facts

supporting a district court’s denial of a motion to suppress. See United States v.

Cunningham, 133 F.3d 1070, 1072 (8th Cir. 1998) (citing Ornelas v. United States, 116

S. Ct. 1657, 1663 (1996)), petition for cert. filed, ___ U.S.L.W. ___ (U.S. April 13,

1998). We review de novo the legal conclusions based upon those facts. Id.

“[T]he IRS may not develop a criminal investigation under the auspices of a civil

audit.” United States v. Grunewald, 987 F.2d 531, 534 (8th Cir. 1993).
-35-

Evidence obtained in the course of a criminal investigation, where the

defendant has not been apprised of the nature of the investigation, may be

suppressed only if the defendant establishes that: 1) the IRS had firm

indications of fraud by the defendant, 2) there is clear and convincing

evidence that the IRS affirmatively and intentionally misled the defendant,

and 3) the IRS’s conduct resulted in prejudice to defendant’s constitutional

rights.

Id. (citing United States v. Meier, 607 F.2d 215, 217 (8th Cir. 1979) and United States

v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977)) (emphasis added). Although Clark and

Wadena allude to the three Grunewald factors, they do not directly address the factors

or acknowledge their burden to establish the existence of those factors. See Wadena Br.

at 10-19; Clark Br. at 44-46. Instead, they focus their arguments on Agent Nelson’s

knowledge of and alleged direction of the simultaneous criminal investigation and civil

audit, as well as his alleged failure to refer the case to the CID. For the reasons

discussed below, we conclude the defendants have not shown the existence of the

Grunewald factors, and the IRS’s investigations did not violate their Fourth and Fifth

Amendment rights.

An IRS auditor conducting a civil audit who detects a firm indication of fraud

must suspend the audit and refer the case for evaluation by the CID. See Grunewald,

987 F.2d at 534 (citing Audit Guidelines for Examiners, CCH Internal Revenue Manual

(Audit), §§ 4231, 4564.21, 9322.1). A firm indication of fraud is different than an initial

indication that fraud exists, and it is more than a mere suspicion of fraud. See Groder

v. United States, 816 F.2d 139, 143 (4th Cir. 1987). Whether Nygren (the civil auditor)

had a firm indication of fraud and failed to suspend the civil audit is a question of fact

we review for clear error. See Cunningham, 133 F.3d at 1072. Clark and Wadena do

not present any evidence showing that Nygren had a firm indication of fraud and failed

to suspend the civil audit of Northern. Further, Nygren specifically denied he suspected

any fraud when he mailed the audit letter to Northern. Our review of Nygren’s trial

testimony pertaining to the simultaneous investigations likewise does
-36-

not indicate Nygren had a firm indication of fraud and failed to refer the case to the CID.

Thus, neither Clark nor Wadena have established the first Grunewald factor. 

“[T]he mere failure of an IRS agent to inform a defendant that information

developed in an audit may result in a further criminal investigation does not indicate

affirmative and intentional deceit by the IRS.” Grunewald, 987 F.2d at 534. Clark and

Wadena do not present clear and convincing evidence that the IRS affirmatively and

intentionally misled the defendants by conducting the civil audit of Northern with the

express purpose of obtaining records for the criminal investigation. Indeed, defendants

point to nothing more than knowledge by Nygren that Agent Nelson was conducting a

criminal investigation. Neither Clark nor Wadena have established the second

Grunewald factor. Given Clark’s and Wadena’s failure to establish the first two

Grunewald factors, we need not address the third Grunewald factor. In sum, we

conclude the district court did not err when it denied Clark’s and Wadena’s various

motions to suppress the evidence obtained from the civil audit and any evidence derived

therefrom.

C. Count 19 as a Cognizable Offense

As noted above, Count 19 of the Indictment charged Clark, Rawley, and Wadena

with conspiring to misapply tribal funds, in violation of 18 U.S.C. § 1163. The object

of this conspiracy was to obtain tribal funds in the form of excessive payments for

serving on the Commissions. The overt acts undertaken in furtherance of this conspiracy

included the creation of the Commissions and the defendants’ receipt of various

commission payments. The jury convicted all three defendants of this charge.

Before trial, the defendants moved to dismiss Count 19. The district court denied

their motions. In the present appeal, Clark and Wadena contend the district court erred

in not dismissing Count 19, because the count fails to allege a cognizable
Rawley does not raise this issue in his brief. The government, in a footnote, 29

also claims Clark did not raise this issue below and is therefore barred from making this

argument for the first time on appeal. The government provides no legal or factual

support for this contention. Moreover, Clark contends he raised the issue below

because at the pretrial motion hearing, he adopted Wadena’s and Rawley’s motions and

arguments concerning jurisdiction, and this is a jurisdictional issue. For purposes of

this appeal, we will assume Clark raised this issue below.

-37-

offense. They argue that all of the overt acts alleged to have been committed in Count 29

19 were official actions taken pursuant to their capacities as members of the RTC, and

the RTC as an entity or governmental body cannot conspire with itself. Clark and

Wadena base this contention on Runs After v. United States, 766 F.2d 347, 354 (8th Cir.

1985), which they claim controls this case.

In Runs After, several members of the Cheyenne River Sioux challenged the

validity of two resolutions passed by the Cheyenne River Sioux Reservation Tribal

Council (Tribal Council). 766 F.2d at 349. The two resolutions, passed by a vote of the

Tribal Council, barred certain tribal members from running in future tribal elections. Id.

The plaintiffs challenged the resolutions under various federal civil rights statutes. The

court rejected the plaintiffs’ challenges, concluding, in part, that “individual members

of the Tribal Council, acting in their official capacity as tribal council members, cannot

conspire when they act together with other tribal council members in taking official

action on behalf of the Tribal Council.” Id. at 354 (citing Herrmann v. Moore, 576 F.2d

453, 459 (2d Cir. 1978) (stating there is no conspiracy if the conspiratorial conduct is

essentially a single act by a single corporation acting exclusively through its own

directors, officers, and employees, each acting within the scope of his or her

employment)).

Runs After is a civil suit involving a dispute between tribal members. It is not a

criminal case alleging violations of federal criminal law by a tribal entity or by members

of a tribal entity. More importantly, Runs After involved the conduct of tribal
-38-

council members regarding two official acts of the entire tribal council—the passing of

two resolutions. In the present case, it appears there was an official act of the RTC to

create the Commissions. It also appears there was an official act by the RTC to approve

a commission payment range for each member. However, these are not the only overt

acts alleged by Count 19. The count also alleges numerous overt acts in which Clark,

Rawley, and Wadena, when they wanted money for purchases, debts, etc., individually

directed the tribe to issue them checks labeled as commission payments. These

individual payments were not collectively approved or issued by the RTC. For these

reasons, we conclude Runs After is distinguishable from this case. As Clark and

Wadena provide no other support for this argument, we conclude Count 19 alleged a

cognizable offense, and the district court did not err when it denied their motions to

dismiss the count.

D. Interstate Nexus in Money Laundering Counts

The Indictment charged Clark and Wadena with various counts of money

laundering, in violation of 18 U.S.C. § 1957. At the close of the government’s case,

Clark and Wadena filed motions for judgment of acquittal on these counts pursuant to

Federal Rule of Criminal Procedure Rule 29. They argued that during its case-in-chief,

the government offered no evidence to prove the element of an interstate commerce

nexus, which is an essential element of any § 1957 violation. The district court denied

their motions.

In the present appeal, Clark and Wadena contend the district court erred in

denying their Rule 29 motions. In response, the government claims the defendants

waived their right to challenge the denial of their motion when they failed to renew the

motion at the close of evidence, and even if this court concludes the defendants did not

waive their right to appeal the denial of their motion, the government nonetheless

presented sufficient evidence to prove the element of an interstate commerce nexus. We

address the government’s waiver argument first.
-39-

Generally, a defendant waives the right to appeal a denial of a motion for acquittal

if the defendant fails to renew the motion at the close of all of the evidence. See

Edwards v. United States, 333 F.2d 588, 589 (8th Cir. 1964). Such a waiver limits the

scope of appellate review to a determination of whether there was plain error or a defect

affecting the substantial rights of the defendant. See id. It appears neither Wadena nor

Clark renewed their motion for acquittal at the close of the evidence. Thus, it is likely

they waived their right to appeal the denial of the motion. See id. Nonetheless, because

the government’s alleged failure to prove an essential element of the money laundering

offenses would be a defect affecting the substantial rights of Clark and Wadena, we will

address the issue of whether the government presented sufficient evidence to prove the

element of an interstate commerce nexus.

It appears this court has not determined the quantum of evidence necessary to

prove the element of an interstate commerce nexus in § 1957 cases. Other circuits,

however, have held evidence that the transaction in question was in interstate commerce

or utilized the instrumentalities of interstate commerce is sufficient proof of the element

of an interstate commerce nexus. See, e.g., United States v. Kunzman, 54 F.3d 1522,

1527 (10th Cir. 1995) (concluding evidence of checks drawn on federally-insured banks

and services purchased from an out-of-state company is sufficient to support finding of

interstate commerce nexus); United States v. Peay, 972 F.2d 71, 74-75 (4th Cir. 1992)

(concluding evidence that funds were deposited and withdrawn from an FDIC-insured

institution provided sufficient proof of an interstate commerce nexus). The government

presented evidence that the checks referenced in Counts 10 through 18 were all

deposited in either the First National Bank of Detroit Lakes, Minnesota or the State

Bank of Winger, Minnesota. As these institutions are FDIC-insured, the government’s

evidence that these checks were deposited into these institutions is sufficient proof of an

interstate commerce nexus. See, e.g., Kunzman, 54 F.3d at 1527. Thus, the district

court did not err when it denied Clark’s and Wadena’s Rule 29 motions.
-40-

E. Admission of Government’s Exhibit 97

During trial, the government presented exhibit 97 for admission into evidence.

Exhibit 97 consisted of a Northern check numbered 3657 in the amount of $15,000,

signed by Clark, and made payable to Jerry Rawley. The exhibit also consisted of the

check’s register stub bearing the number 3657, the name Jerry Rawley, and the amount

of $15,000. Significantly, the stub also contained a partially-erased pencil notation

“gift.” Before trial, Rawley raised three objections to the admission of the check stub

portion of the exhibit into evidence: 1) failure to authenticate; 2) hearsay; and 3) denial

of his Sixth Amendment right to confront witnesses against him. The district court

admitted exhibit 97 into evidence. 

On appeal, Rawley contends we must reverse his convictions of Counts 1, 3, and

4, because the district court erred in admitting exhibit 97. We review for abuse of

discretion the district court’s decision that exhibit 97 was authenticated and did not

constitute inadmissible hearsay. See United States v. Henneberry, 719 F.2d 941, 948

(8th Cir. 1983); United States v. Jackson, 67 F.3d 1359, 1364 (8th Cir. 1995). We

review de novo the district court’s decision that admission of exhibit 97 did not violate

Rawley’s Sixth Amendment rights. See United States v. Johnson, 56 F.3d 947, 953 (8th

Cir. 1995).

We address Rawley’s authentication argument first. A party authenticates a

document by presenting evidence sufficient to support a finding that the document is

what the party claims it to be. See Fed. R. Evid. 901(a). The party authenticating a

document need only prove a rational basis for that party’s claim that the document is

what it is asserted to be. See United States v. Long, 857 F.2d 436, 442 (8th Cir. 1988)

(citing United States v. Natale, 526 F.2d 1160, 1173 (2d Cir. 1975)). “This may be done

with circumstantial evidence.” Id. The government offered sufficient evidence to

authenticate exhibit 97. Thus, the district court did not abuse its discretion when it

decided the government properly authenticated exhibit 97.
Clark adopts Wadena’s arguments regarding jury instructions pursuant to

30

Federal Rule of Appellate Procedure 28(j) and Eighth Circuit Rule of Appellate

Procedure 28A(j).

-41-

Rawley’s next contention is that the district court abused its discretion when it

concluded the partially-erased word “gift” on the check register was not hearsay. A

written statement that would ordinarily be defined as hearsay is not hearsay if the

statement is offered against a party, and it is a statement of a co-conspirator of that party

made during the course of and in furtherance of a conspiracy. See Fed. R. Evid.

801(d)(2)(E). The “gift” notation falls within the scope of Federal Rule of Evidence

801(d)(2)(E). Therefore, we conclude the district court did not abuse its discretion when

it decided the statement “gift” is not hearsay. Additionally, after a de novo review of

Rawley’s Sixth Amendment challenge, we conclude it is without merit.

F. Jury Instructions

The defendants allege four errors relating to the district court’s instructions to the

jury. First, Clark and Wadena allege the district court invaded the province of the jury 30

by instructing the jury that the government had already proven the essential elements of

two charged offenses: theft or bribery concerning programs receiving federal funds, in

violation of 18 U.S.C. § 666 and misapplication of tribal funds, in violation of 18 U.S.C.

§ 1163. Second, Clark and Wadena claim the district court deprived them of due

process and a fair trial when it failed to instruct the jury regarding the required intent of

a § 666 violation and a § 1163 violation. Third, Rawley contends the district court erred

in submitting a jury instruction relating to Minnesota notary law. Finally, Rawley

contends the district court erred when it refused to provide the jury with a theory of

defense instruction he requested. We address these arguments in turn.
-42-

1. Instructions Regarding Essential Elements of Offenses

In jury instruction 29, the district court cited to the jury pertinent aspects of 18

U.S.C. § 1163, including the section’s definition of the term “Indian tribal organization.”

The court then stated “[t]he White Earth Band of the Minnesota Chippewa Tribe is an

Indian tribal organization.” Jury Inst. 29, United States v. Wadena, No. 3-95-102 (D.

Minn. June 24, 1996). In jury instruction 33, the district court listed the elements of an

18 U.S.C. § 666 violation. One element of a § 666 offense is that the accused must be

an agent of an Indian tribal government or any agency thereof. 18 U.S.C. § 666

(emphasis added). In jury instruction 33, the court told the jury it must find “that during

the time period alleged in each count the defendant was an agent of the White Earth

Band of Chippewa Indians.” Jury Inst. 33, United States v. Wadena, No. 3-95-102 (D.

Minn. June 24, 1996). Clark and Wadena assert that whether the Band was an Indian

tribal organization under § 1163, and whether the Band was an Indian tribal government

under § 666, were questions for the jury, and the district court violated their Fifth and

Sixth Amendment rights by instructing the jury that these essential elements of the §

1163 and § 666 offenses had already been proven.

A court may err when it instructs a jury that a fact essential to a defendant’s

conviction has already been established. See Sullivan v. Louisiana, 508 U.S. 275, 277

(1993). However, an error of this type is subject to harmless error review. See United

States v. Raether, 82 F.3d 192, 194 (8th Cir. 1996). Clark and Wadena have vigorously

asserted throughout this appeal that the federal courts lack jurisdiction over this entire

case because of the Band’s status as an independent sovereign and their statuses as

members of the Band. Given this position, we do not see how the court’s errors in jury

instructions 29 and 33, if any, could have harmed either Clark or Wadena. Thus, without

addressing whether the district court’s jury instructions 29 and 33 were in fact erroneous,

we conclude the claimed error was harmless.
-43-

2. Failure to Instruct on Intent

Clark and Wadena claim that the district court failed to instruct the jury that, with

respect to violations of 18 U.S.C. § 666 and § 1163, the jury must find they acted with

an intent to injure or defraud. We disagree. Neither § 666 nor § 1163 contain such a

requirement. See 18 U.S.C. §§ 666 and 1163.

3. Instructions on Minnesota Notary Law

In jury instruction 53, the district court stated: “In taking an acknowledgment,

verification, or witnessing a signature a notary must determine, that the person appearing

before him or her is the person whose true signature is on the instrument. You are

instructed that to do otherwise is a violation of state law.” Jury Inst. 53, United States

v. Wadena, No. 3-95-102 (D. Minn. June 24, 1996). Rawley objected to this instruction

when the district court made it. On appeal, Rawley contends this instruction was

irrelevant, and “[t]he only effect the instruction could have on the jurors was either to

make the apparent state law violation somehow appear to be an element of the federal

offenses, or to cast the failure [to properly notarize ballots] as evidence of bad acts by

the defendants.” See Rawley Br. at 35-36. We review instruction 53 for harmless error.

See United States v. Ryan, 41 F.3d 361, 366 (8th Cir. 1994) (citing United States v.

Voss, 787 F.2d 393, 398 (8th Cir. 1986)). In this case, the issue of whether numerous

absentee ballots were properly notarized by state-certified notaries was an important

aspect of the prosecution of the election conspiracy and offenses arising from that

conspiracy. Thus, jury instruction 53 was not irrelevant and was not in error.

4. Rawley’s Proposed Theory of Defense Instruction

With respect to the tribal election notarization process, Rawley also proposed a

jury instruction indicating, in part:
Section 3B1.3 provides in relevant part: 31

If the defendant abused a position of public or private trust, or used a

special skill, in a manner that significantly facilitated the commission or

concealment of the offense, increase by 2 levels. This adjustment may not

be employed if an abuse of trust or skill is included in the base offense

level or specific offense characteristic.

U.S. Sentencing Guidelines Manual § 3B1.3 (1995).

-44-

Under the laws of the Minnesota Chippewa Tribe and the White Earth

Band, a violation of the requirement that an absentee vote be marked and

signed in the presence of a notary public did not invalidate any absentee

vote prior to the June 14, 1994, election. Accordingly, in order to find that

a defendant had the intent to have a false vote cast in the 1990 or 1994

election(s), you must find that the government proved such intent, beyond

a reasonable doubt, by showing evidence that the defendant intended to

cast false votes in the election other than with evidence of a mere violation

of the requirement that an absentee vote be marked and signed in the

presence of a notary public.

See Addendum to Rawley Br. Rawley contends he was entitled to this instruction

because it was timely, supported by the evidence and set forth a correct statement of the

law (i.e. 18 U.S.C. § 241). See Rawley Br. at 36-37 (citing United States ex rel., Means

v. Solem, 646 F.2d 322, 328 (8th Cir. 1980)). We disagree. The district court

adequately and correctly instructed the jury on the elements of the § 241 offenses, and

Rawley is not entitled to particularly worded instructions regarding the § 241 offenses.

Cf. United States v. Bettelyoun, 16 F.3d 850, 853 (8th Cir. 1994).

G. Sentencing Enhancement for Abuse of Trust in Money Laundering Offenses

When it sentenced Clark and Wadena, the district court grouped together Counts

10 through 18, which are the money laundering offenses. Pursuant to § 3B1.3 of the

federal sentencing guidelines, the district court applied a two-level adjustment for abuse

of a position of trust. Clark and Wadena assert the district court erred in its 31
-45-

application of the federal sentencing guidelines when it applied this two-level

enhancement to the offense level of Counts 10 through 18. We review de novo a district

court’s application of the federal sentencing guidelines. See United States v. Collins,

104 F.3d 143, 144 (8th Cir. 1997).

Clark and Wadena assert that the federal sentencing guidelines limit the

application of § 3B1.3 to circumstances in which the abuse of a position of trust

significantly facilitated the commission or concealment of the offense, and the

government presented no evidence that they abused a position of trust to deposit the

checks referenced in Counts 10 through 18 or to conceal the deposit of those checks.

See Wadena Br. at 37-38; Clark Br. at 48. Although Counts 10 through 18 involved the

deposit of various checks, Clark and Wadena fail to acknowledge that the money

laundering offenses for which the jury convicted them involved more than the mere

deposit of checks. See 18 U.S.C. § 1957. Clark’s and Wadena’s respective positions

of trust significantly aided them in obtaining the criminally-derived property (i.e. the

checks) and using that property to engage in monetary transactions, in violation of 18

U.S.C. § 1957. Therefore, the district court did not err when it applied a two-level

increase for abuse of a position of trust to the offense level of Counts 10 through 18.

The judgments of conviction and the respective sentence for each defendant are

AFFIRMED.
The court boldly cites United Stated v. Bledsoe, 674 F.2d 647, 655 (8th Cir. 32

1982), for the proposition that "[a]n indictment must reveal on its face a proper basis

for joinder." Ante at 27-28. Notwithstanding the court's unfettered confidence in

Bledsoe, this issue equally divided the court in United States v. Grey Bear, 863 F.2d

572 (8th Cir. 1988) (en banc) (5-5 decision) (stating that an indictment must reveal on

its face a proper basis for joinder) (Lay, C.J., Heaney, McMillian, Richard S. Arnold,

and Wollman, JJ., joining) (stating that propriety of joinder is not limited to the face of

the indictment) (John R. Gibson, Fagg, Bowman, Magill, and Beam, JJ., joining). I

agree with the court's conclusion here that any joinder error was harmless, but I do not

agree with the unnecessary citation to Bledsoe, particularly when unaccompanied by

an explanation.

-46-

BEAM, Circuit Judge, concurring and, in part, dissenting.

I concur in the result reached by the court in Part II and, with qualification, Part 32

IV. I disagree, however, with the court's conclusion in Part III that we have jurisdiction

to prosecute Clark and Rawley for a violation of 18 U.S.C. § 241. Therefore, I dissent

in part.

In asserting subject-matter jurisdiction under this general federal criminal law, the

court not only disregards the longstanding federal policy of advancing tribal selfdetermination, but blatantly fails to apply circuit precedent. We have held that "if a

particular Indian right or policy is infringed by a general federal criminal law, that law

will be held not to apply to Indians on reservations unless specifically so provided."

United States v. Blue, 722 F.2d 383, 385 (8th Cir. 1983) (McMillian, J.). The right of

tribal self-government has long been recognized and protected by both the courts, see,

e.g., United States v. Kagama, 118 U.S. 375, 381-82 (1886), and Congress, see, e.g., 18

U.S.C. § 1152 (declaring that "[t]his section shall not extend to offenses committed by

one Indian against the person or property of another Indian"). In my view, the exclusive

right to prosecute members for fraud in a tribal election is a necessary and intimate

aspect of tribal self-government. Federal prosecution of tribal election crimes will

severely interfere with the tribes' ability, as separate sovereigns, to eradicate such
-47-

corruption in their own elections and their own government. Until Congress specifically

provides for jurisdiction over this type of internal tribal matter, we must avoid the

paternalistic temptation to assert jurisdiction based on the subjective belief that federal

intervention is the only way to protect the civil rights of tribal members. 

Jurisdiction over a dispute arising on an Indian reservation "is governed by a

complex patchwork of federal, state, and tribal law." Duro v. Reina, 495 U.S. 676, 680

n.1 (1990). Because Indian tribes pre-existed the Constitution, they "still possess those

aspects of sovereignty not withdrawn by treaty or statute, or by implication as a

necessary result of their dependent status." United States v. Wheeler, 435 U.S. 313, 323

(1978). One aspect of this retained sovereignty includes the power to "control their own

internal relations," Duro, 495 U.S. at 685, which necessarily includes criminal

"jurisdiction of all controversies between" tribal members, e.g., In re Mayfield, 141 U.S.

107, 115-16 (1891). Congress has broad powers to modify this retained sovereignty by

conferring federal jurisdiction over crimes committed on Indian reservations. See, e.g.,

Talton v. Mayes, 163 U.S. 376, 384 (1896). Thus, the question is whether Congress has

provided jurisdiction for this federal prosecution.

The court correctly finds no basis for jurisdiction in the Indian Country Crimes

Act and the Indian Major Crimes Act. See 18 U.S.C. §§ 1152 and 1153. Faced with

congressional silence, however, the court turns to a general federal law, which by its

terms applies to all persons. See 18 U.S.C. § 241. Section 241 provides that it is

unlawful for two or more persons to "conspire to injure, oppress, threaten, or intimidate

any person in any State, Territory, Commonwealth, Possession, or District in the free

exercise or enjoyment of any right or privilege secured to him by the Constitution or laws

of the United States." Id.

Assuming that Congress intended to include American Indians within the scope

of laws which, by their terms, are applicable to all persons, we have applied general

federal laws to tribal crimes. See, e.g., Stone v. United States, 506 F.2d 561, 563 (8th
-48-

Cir. 1974). However, we have refused to extend this source of jurisdiction to purely

internal tribal matters because that would intrude upon tribal sovereignty. See, e.g.,

United States v. White, 508 F.2d 453, 455 (8th Cir. 1974) (stating that "areas

traditionally left to tribal self-government, those most often the subject of treaties, have

enjoyed an exception from the general rule that congressional enactments, in terms

applying to all persons, includes Indians and their property interests"); see also Felix S.

Cohen, Felix S. Cohen's Handbook of Federal Indian Law, 286 (1982 ed.) (stating that

"the Supreme Court has consistently recognized the unique status of tribes, Indians, and

their lands, and has required that the congressional purpose of a conflicting law clearly

require that it apply to Indians before Indian rights are held implicitly infringed"). Thus,

the question is whether prosecution under section 241 for tribal election fraud intrudes

upon tribal self-government. 

The court mischaracterizes this inquiry by looking to whether there is a tribal right

to use the election system fraudulently in order to maintain a position of power. Ante

at 24. Obviously, no such right exists. What the court fails to appreciate, however, is

that the tribal right at issue is the exclusive right to prosecute tribal election offenses,

which is necessary to maintain political integrity. See Montana v. United States, 450

U.S. 544, 566 (1981) (discussing the inherent tribal power to regulate activities that

"threatens or has some direct effect on the political integrity . . . of the tribe"). Intently

focused on abating the corrupt actions of a few individuals, the court overlooks the

important interest of the tribe in abating corruption within its own government.

Monitoring tribal elections is an area traditionally left to tribal government and any

contrary holding would violate the federal policy of respecting tribal sovereignty in the

absence of express congressional authority. 

Of course, Congress could remove this aspect of sovereignty and interject federal

election policies and remedies into tribal elections. The wisdom of such a decision is

best left to Congress, which is obviously better positioned to determine its potential

impact. Rather than deferring to Congress, the court recklessly adopts a newly minted
-49-

balancing test, not fairly supported as near as I can find anywhere within the recorded

annals of American Indian litigation, weighing federal interests against tribal interests.

See ante at 16. The result is a vague and incoherent test for jurisdiction. We should

simply limit our inquiry to whether, on a case-by-case basis, the application of a general

criminal law would infringe on tribal sovereignty. See Blue, 722 F.2d at 385.

I recognize that the oppression of tribal voting rights constitutes a fundamental

assault on a democratic society and a serious violation of the civil rights of tribal

members. Nonetheless, only Congress can remove this aspect of sovereignty. Because

Congress has not so acted, I would decline to assert jurisdiction over the election

conspiracy offenses.

Even if we did have jurisdiction, I would disagree with the court's unprecedented

extension of a federal election statute (18 U.S.C. § 241) to a tribal election. Although

the Supreme Court has applied section 241 to a hybrid local and federal election, it did

so because the conspirators used a voting machine to cast votes for both federal and

local candidates. See Anderson v. United States, 417 U.S. 211, 225 (1974). The Court

expressly declined to address whether section 241 would apply to a conspiracy to cast

false votes in a local election that did not include any federal candidates. Id. at 228. 

Similarly, we have applied section 241 to a local election, but only where the

conspirators destroyed absentee ballots that also included votes that had been cast for

federal candidates. See United States v. Townsley, 843 F.2d 1070, 1080 (8th Cir.

1988). Contrary to the court's reading of Townsley, see ante at 19-20, we have never

endorsed the application of section 241 to purely local, much less tribal, elections. We

cautioned that "we do not reach the question left undecided by the Supreme

Court—whether 18 U.S.C. § 241 extends to conspiracies to cast votes in purely local

elections in which no federal candidate is on the ballot." Townsley, 843 F.2d at 1080

n.10. If we were required to reach this issue, which I submit we are not, due to our lack

of jurisdiction in the first instance, I would not extend section 241 to a tribal
-50-

election. See Bathgate v. United States, 246 U.S. 220, 226 (1918) (discussing the

congressional policy "not to interfere with elections within a State except by clear and

specific provisions").

Accordingly, I respectfully dissent from Part III of the court's decision.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.