## 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. *-2- ___________ 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 vi olation of 18 U.S.C. § 371, theft or briber

y concerning programs receiving federal funds, in violation of 18 U.S.C. § 666, engaging in monetary transactions in property derived from specifie d unla wful activity, in violation of 18 U.S.C. §§ 1957 and 2, and willful misapplication of tribal fund s, in violation of 18 U.S.C. § 1163. In addition, Clark and Rawley wereWadena received a sentenceof 51 months in prison, Clark received a sentence 1 of 46 months in prison, and Ra wley received a sentence of 37 months in prison. Each defendant was also ordered to pay restitution, fines, and a special assessment. F or example, in the time period relevant to this case, the RTC controlled th e 2 dist ributionof assistance funds for Band members, made housing loans to variou s members, and conducted economic development projects.
-3- convic ted of mail fraud, in violation of 18 U.S.C. §§ 1341 and 2, and conspiracy t o oppress free exercise of election rights, in violation of 18 U.S.C. § 241. 1

Cla rk, Rawley, and Wadena appeal their convictions. On appeal, they jointl y 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 discusse d below, we affirm all judgments of conviction.

I. Background

The 8 80,000-acre White Earth Reservation (“Reservation”) is located i n northwest Minnesota. The Reservation is home to the White Earth Ban d (“Band”), one of the six constituent bands of the Minnesota Chippewa Tribe. The Band consists of 22,000 memb ers. Approximately 3,800 of the Band’s enrolled members live on th e Rese rvation, and the remaining members live throughout the United States. Th e Re servation Tribal Council (“RTC”) (formerly known as the Reservation Busines s Committee) governs all aspects of the Band, including its economic activity. 2

The RTC consists of five members who ser ve four-year terms. The Band elects the memb ers 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 th e time frame relevant to this case, Clark, Rawley, and Wadena all served on the RTC.Initi ally, the RTC appointed Jim Foster, the Band’s Executive Director, t o 3
over see the Casino construction on behalf of the RTC. Clark eventually replace d Foster.
-4- Wadena served as Chairman, Rawley served as Treasurer, and Clark served a s Councilman.

The offenses for which Clark and Rawley were convicted arose from thre e conspiracies: 1) the construction conspiracy; 2) the commissions conspiracy; and 3) the elec tion conspiracy. Wadena’s convictions arose solely from the constructio n conspiracy and the commissions conspiracy. We detail these conspiracies below.

A. The Construction Conspiracy

In 1985 , Congress enacted the White Earth Reservation Land Settlement Ac t (“WERLSA”). 25 U.S.C. § 331. The purpose of the WERLSA was to settle numerous claims involving large portions o f land on the Reservation. Id. As part of the Act, the United States a

ppropriated $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 th e Reservation called the Shooti ng 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, I nc. (“Gordon”) to act as general contractor f o r 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-5-

project, Northern's gross revenues never exceeded $50,000. Clark owned Northern, and he served as its president.

Constr uction of the Casino began in mid-1991 and was completed within on e ye ar. The Casino was quite successful; it created more than 1000 jobs and generate d million s 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 1 993, the civil examination unit of the Internal Revenue Service (“IRS” ) conducte d an audit of Northern. During the audit, examiner Greg Nygren discovere d Northern ha d made payments to Wadena totaling over $428,000. Northern made th e first payment to Wadena in July 1991, about four mo nths before the drywall subcontract was publicized. In response to inquiries about the payments, Cla rk and Wadena claimed Wa dena held an undisclosed ownership interest in Northern, and the payment s represen ted Wadena’s share of profits from Northern. However, Wadena neve r mentioned t his alleged ownership interest on his 1990 financial statements or on loa n applicat ions he submitted in 1990. Further, Northern’s accountant did not know o f Wadena’s alleged interest. Later, Clark falsified and backdated Northern’s corporat e mi nutes and stock certificates in an attempt to document Wadena’s ownership interest in the company.

In 1992, Northe rn 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 Rawl ey 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,C ount 2 charged Clark with making the $15,000 payment to Rawley, i n 4 viol ation of 18 U.S.C. § 666(a)(2). Count 3 charged Rawley with accepting tha t payment, in violation of 18 U.S.C. § 666(a)(1)(B). Co unt 4 charged Clark and Rawley withmoney 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 fro m Northern, in violation of 18 U.S.C. § 666(a)(1)(B ). Count 6 charged Clark with giving Wadena No rthern stock, in violation of 18 U.S.C. § 666(a)(2). Count 7 charge d Wadena with accepting $428,682.50 in payments from Cl ark, in violation of 18 U.S.C. § 666(a)(1)(B). Count 8 charged Clark with givi ng Wadena $428,682.50 in payments, in violat ion of 18 U.S.C. § 666(a)(2). Count 9 charged Clark with using the mail t o procure phony bids for the Casino, in violation of 18 U.S.C. § 1341. Counts 1 0 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 creatin g 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.
-6- 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, an d 4 Wadena of all counts related to the construction conspiracy.

B. The Commissions Conspiracy

The RTC me mbers created two commissions of which they were the sol e
me mbers: the Gaming Control Commission and the Fishing Commissio n (“Commissions”). The RTC members assumed no additional duties by serving on the Comm issions, and the Commissions themselves were essentially functionless. 5 Nonetheless, Clark, Rawley, and Wadena received substantial payments for theirThese payments were in addition to the salaries Clark, Rawley, and Waden a 6 receivedfor service on the RTC. In 1993, Wadena’s RTC salary was $144,000 , Cla rk’s RTC salary was $122,000 and Rawley’s RTC salary was $102,000. Th e 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-te rrain vehicle and a snow plow, in violation of 18 U.S.C. § 1163. Count 2 1 charged Cla rk with misapplying tribal funds for the purchase of a snowmobile, i n violation of 18 U.S.C. § 1163. Count 22 charged Wadena with misapplying triba l funds for a payment on a car loan, in violation of 18 U.S.C. § 1163. Count 23 charged Rawley wi th 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 violationof 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 obtain ing tribal funds by fraud and intentionally misapplying those funds, in violation of 18 U.S.C. § 666. Count 2 8 charged Rawley with money laundering, in violation of 18 U.S.C. § 1957.
-7- servic e 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 the y direct ed the Band’s accounting department to code the checks as payment fo r commi ssion meetings. These payments were made from the Band’s general treasury , andwhen 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 count s arising from the Commissions conspiracy. Count 19 alleged the defendants
co nspiredto misapply tribal funds, in violation of 18 U.S.C. §§ 371 and 1163. Th e 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, th eft or bribery concerning programs receiving federal funds, and money laundering. 7 The jury convicted Clark and Wadena of all counts relating to the-8-

Commissions conspiracy. The jury convicted Rawl ey 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 electio n rights. As note d 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 absent ee ballot. The Minnesota Chippewa Tribe prescribes absentee ballot votin g procedures for its constituent tribes. During the time frame relevant to this case, these procedur es provided that a person who wished to vote by absentee ballot would firs t 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 s end 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 notarizin g ab sentee ballots, and Clark himself forged numerous ballots. The governmen t emphasiz es that Clark and Rawley used the United States mail as well as notarie s 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 andCount 29 also named tribal election judge Carley Jask en, notary Peter Pequette, 8 Jr., and nota ry Henry Harper. The jury acquitted Jasken of all charges. Pequett e co operated with and testified on behalf of the government. Harper pleaded guilty t o making a false writing, in violation of 18 U.S.C. § 1001. Count 30 charged Clark w ith using tribal funds to pay people to assist him and 9 others in g aining re-election, in violation of 18 U.S.C. § 1163. Count 31 charge d Rawley with using tribal funds to pay people to assist him in gaining re-election, i n 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.

-9- 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 Un ited States, or because of his [or her] having so exercised th e same. . . .

The object of this conspiracy was to procure the election of certain candidates to tribal positions by causing election off icials to corruptly discharge their duties and by causing fraudul ent

ballots to be cast. Counts 30 through 44 alleged various acts o f misapp lication of funds, mail fraud, false statements, and obstruction of justice. Th e 9 jury convict ed Rawley of all counts relating to the election conspiracy. The jur y convicted Clark of all cou nts 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 JurisdictionSee, e.g. , United States v. Smith , 562 F.2d 453, 455-58 (7th Cir. 1977 );. United 10 State s v. Begay , 42 F.3d 486, 497-500 (9th Cir. 1994); United States v. Markiewicz , 978 F.2 d 786, 797-803 (2d Cir. 1992); United States v. Blue , 722 F.2d 383, 384-8 6 (8th Cir. 1983). Section 1152 provides: 11 Except as otherwi se expressly provided by law, the general laws o f the United States as to the punishment of offense s committ ed in any place within the sole and exclusiv e jurisdiction of the United States, except the District o f Columbia, shall extend to the Indian country.

-10- Each defendant challenges his co nvictions 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 crimina l laws do apply to them, Public Law 280 (codified at 18 U.S.C. § 1162) grante d Minnesot a state courts exclusive jurisdiction over crimes involving Indians and arising in Indian country.

The defe ndants’ first jurisdictional challenge is broad-based and if true, woul d require this court to dismiss a ll charges. This particular jurisdictional claim is allegedly derived from historic interpretation of the “patchwo rk” of federal statutes and early case law a ffecting the sovereignty of Indian tribes in America. This area of the law is no t easily di scerned and has arisen in numerous cases both in this court and other circui t courts of appeal. 10

The general laws of the United States were made applicable to Indian Countr y through the Indian Country Crimes Act, 18 U.S.C. § 1152. The second paragraph of 11T h is 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 t o any case where, by treaty stipulations, the exclusiv e jur isdiction over such offenses is or may be secured to th e 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) An y Indian who commits against the person o r pr operty of another Indian or other person any of th e following offenses, namely, murder, manslaughter , k i dnapping, maiming, a felony under chapter 109A, incest,
ass ault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury (as d efined in section 1365 of this title), an assault agains t an in dividual 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 th e same law and p enalties as all other persons committing any of the above offenses, within the exclusive jurisdi ction of the United States. (b) Any offense referred to in subsection (a) of thi s

-11- the Act contains an exception to this jurisdictional gr ant 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 t

his exception and dismissed a federal prosecution for murder of one Indian by another. In 1885, in order to curb a perceived lawlessness resultin g from the Crow Dog decision, Congress passed the In dian Major Crimes Act, 18 U.S.C. § 115 3, which provides the federal courts with exclusive jurisdiction over certai n enumerated crimes. 12secti on that is not defined and punished by Federal law i n forc e within the exclusive jurisdiction of the United State s sha llbe defined and punished in accordance with the law s 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 mus t acknowledge that in states not 13 covered by Public Law 280, the federal government could still prosecute Nativ e 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. Butl er , 541 F.2d 730 (8th Cir. 1976) . However, under the Assimilative Crimes Act, the exception involvin g Indian-against-Indian crimes would still apply. See, e.g. , United States v. Thunde r Hawk , 127 F.3d 705, 706-08 (8th Cir. 1997).
-12- The Indi an Major Crimes Act allowed for federal prosecution of certai n
en umeratedcrimes, and today, the federal government has jurisdiction over fourtee n major crim es when they are committed on an Indian reservation. The Indian Majo r Crime s Act does not contain an Indian-against-Indian exception. Nonetheless, th e 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 thi s 13 argument, the defendants cite United States v. Quiver , 241 U.S. 602 (1916), wherein the S u preme Court observed that the inclusion of certain offenses within the Indian Major Crimes Act “carries with it some imp lication 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 fo r 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 claimFor example, in Blue , our court stated “§ 1152 and its excepti ons 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 inte rpretation has also been made in numerous Ninth Circuit cases, most recently i n Begay , 42 F. 3d at 498 (Sections 1152 and 1153 “deal[] only with the application o f federa lenclave law to Indians and [have] no bearing on federal laws of nationwid e applicability that make actions criminal wherever committed.”). In contrast, the Fourth Circuit, in United States v. Welch , 822 F.2 d 460, 464 (4th Cir. 1987), reversed a conviction under the Assimilative Crimes Act, holding tha t “[w]hen there is a crime by an Indian against another I ndian 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 thi s “alternative approac h . . . is more deferential to the Supreme Court’s determination in Quiver that congress’s inclusion of c ertain 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 a

t 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 4 98; 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 28 3 16 (Re nnardStrickland et al. eds., 1982) (“Where retained tribal sovereignty in India n -13- on several occasions. S ee, 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 th e one made here, our court and ot her courts of appeal have issued opinions that seem confusing and somewha t inconsistent. However, there are several reas ons 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. 16count ry is not invaded and no other particular Indian right is infringed, individua l

Indians and their property are normally subject to the same federal laws as othe r persons.”); Wheeler , 435 U.S. at 330 n.30 (“Federal juris diction also extends to crimes committe d by an Indian against a non-Indian which have not been punished in triba l 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 aut hority and sovereignty should 17 all ow tribal laws to deal with relations among the members of the tribe. Cf. Quiver , 24 1 U.S. at 603-04 (It is settled policy of Congress “to permit the personal an d domestic relatio ns of the Indians with each other to be regulated, and offenses by one Indianagainst the person or property of another Indian to be dealt with, according to their tribal customs and laws.”).
-14- Federal s tatutes of general applicability, those in which situs of the offense is not a n element of the crime, are not encompassed within the Indian Country Crimes Act. As a result, the Indian-against-Indian exception contai ned in the Indian Country Crimes Act does not apply to federal criminal laws of general applicability.

The Seco nd Circuit in Markiewicz , 978 F.2d 786, and the Seventh Circuit i n Smi th , 562 F.2d 453, emphasized that only federal laws which seek to protect a “peculiar” federal interest may be prose cuted. 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 distric t court had concurrent jurisdiction with the tribal court, because of the “ peculiarly Federal nature” of the assault. 562 F.2d at 458. However, thi s distinction actually is difficult to apply , given the presumption of jurisdictional authority of C ongress to pass federal laws. If Congress passes any federal act, assuming it ha s 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 overrid e tribal sovereignty seemingly is redundant.Defendants rely upon Quiver , 241 U.S. 602, as authority to ex empt 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 C ountry Crimes Act to a general

federal law of adu ltery. Our research is to the contrary. The adultery statute app lied was derived from the Act of March 3, 1887, ch. 397, 24 Stat. 635 , whi ch was directed toward the Territory of Utah. The law was later codified unde r “Certain Offenses in t

he 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 a s otherwise expressly provided, the offenses define d in this chapter shall be pu nishedas hereinafter provided, when committed within any Territory or District, or within or upon any place within the exclusive jurisdiction of the United States.

-15- At the t ime that the Indian Country Crimes Act was passed, it may have bee n assumed, as Feli x Cohen points out, that federal laws outside of enclave laws were not applicable to the Indian Country. SeeCohen, supra , at 296-97. However, as Indian law evol ved, that premise was discarded. General federal criminal laws directed to al l persons became recognized as applying equally to Native Americans within India n Country. See Federal Power Comm’n v. Tus carora 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 UnitedStates as to the punishment of offenses committed in any place within the sole

an d exclusive jurisdiction of the United States . . . .” 18 U.S.C. § 1152 (emphasi s added). Because situs of the of fense is not an element of any of the statutory violations committed b y the defendants, none of the defendants claim the crimes for which the y
were convicted were enclave laws. Thus, because the offenses do not fall within th e 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. 18In othe r words, § 316 was an enclave statute, applying only to federall y

controlled territory. Clearly Congress would have no authority to pass a general law, such as one prohibiting adultery, outside a federal enclave.
-16- The Indian-against-Indi an exception contained in the Indian Country Crimes Act manifested, as Cohen observes, “a broad respect for tribal sovereignty, particularly i n 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 Am ericans in this case does not implicate the tribal concerns of sovereignty addressed by the Ind ian Country Crimes Act exception. There may be other federal-la w prosecuti ons that would implicate important tribal interests. However, we fail to se e how tribal interests are paramount to the federal interests implicated in the variou s crimin al charges involved here. Although the defendants are Native Americans, an d th eir conduct took place within Indian country, tribal interests do not outweigh th e federal interest in prohibiting offenses such as mail fraud, money launderi ng, bribery, and conspiracy. Moreover, Indian tribes are not totally independent of the United States

. Federal jurisdiction over the off enses 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 b e 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 jurisdict ionover all federal offenses committed on Indian lands. As the defendant s 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, actio ns that Congress has declared illegal regardless of where they occur—are not affected by the-17-

enactment of Public Law 280 and remain within the subject-matter jurisdiction of th e federal courts.” 121 F.3d at 1164.

III. Jurisdictional Challenge to the Election Conspiracy
Clark and Rawley do not challenge the sufficiency o f the evidence to sustain their convictions relating to the election fraud, and the evidence of their gu ilt is overwhelming. However, both Clark and Rawl ey vigorously assert that the exercise of federal criminal jurisdiction over the c onspiracy to commit election fraud is not authorized by Congress and seriou sly impinges upon tribal sovereignty. As such, they urge the election wa s within the exclusive jurisdiction of the Tribal Court. They conclude that under th e princi ples enumerated in Quiver and Crow Dog , federal courts lack jurisdiction ove r 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 genera l applicability because the situs of the of fense—in this case, voter fraud—is in no way an element of the crime. In other words, the district court’s rationa le was that Congress has declared anyconspiracy which violates federally protected rights a crime regardless of where the offense occurs. And, as we have previously discussed, laws of genera l applicabili ty “apply” with equal force when committed by a Native American on a reservation. See Part II, supra
.
Clark and Rawle y 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 quasi

sov ereigns and enjoy rights and privileges of self-government and local culture

. Ho wever, the Supreme Court observed early on in Talton v. Mayes that while India n 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 theS ection 1302(8) of the ICRA states in relevant part: “No Indian tribe i n 19 exercising powers of self-government shall . . . deny to any person within it s jurisdiction the equal protection of its laws o r deprive any person of liberty or property without due process of law.” (emphasis added). As the Court in Santa Clara point s ou t, this is not deemed to explicitly identify with the Bill of Rights or the Fourteent h Amendment of the U.S. Constitution. See 436 U.S. at 63 n.14. In § 1302(8), Congress offered reassurance that no tribal government woul d 20 deny to any members the equal protection of th e Tribe’s laws. Furthermore, the ICRA does no t include other constitutional freedoms, such as the prohibition as to th e 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 th e sufferance of Congress and is subject to complete defeasance.” Wheeler , 435 U.S. at 323. Th e Supreme Court emphasized the dominance of congressional authority ove r Indian tribes in Santa Clara Pueblo v. Martinez , 436 U.S. 49 (1978), observing: “As the Court in T alton recognized . . . Congress has plenary authority to limit, modify o r eliminate the powers of local self-gover nment 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 t hat authority. The Court summed up this 19 legislation by obser

ving: “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 iden tical, 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 In dian the broad constitutional rights afforded to other Americans.” Santa Clara , 43 6 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 t heir tribal governments. See Alvin J. Ziontz, In Defense of Tribal Sovereignty: An Analysis of Judicial Error i n Const ruction of the Indian Civil Rights Act , 20 S.D. L. Rev. 1, 1-2 (1975). Th e
con gressional subcommittee first considering the legislation “heard a great deal o f tes timony from Indians complaining of violations of constitutional rights by th e governing bo dies 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 Respons ible Tribal Self-Government , 20 S.D. L. Rev. 59, 73 (1975). Most comme ntators 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 fe deral 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 legislati ve 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 anyperson the enjoyment of a right or privilege secured by the Constitution or laws of the United States . I t is the government’s position that the conspiracy under § 241 was s pecifically 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, 22 5 (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. 21 1, 226 (1974) stated that “[t]he specific intent required under § 241 is not the intent to change the outcome of a f ederal 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 w ell 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 th e conspiracy was to influence a local rather than federal election, that did not defeat the specific i ntent 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 m ight have been were we writing on a clean slate, it is now clear t hat ‘[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 a nd Clark were accused of conspiring to fraudulently cast ballots in a triba l 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 mus t then address is whether the ICRA, as a law of the United States, contains a pr ohibition which allows enforcement of § 241 under general principles of conspiracy law. The ICRA specifically proscribes a violat ion of the Tribe’s equal protection laws, as well as other con stitutional 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 th e governing body equal rights, equal protection, and equal opportunities to participate in the economic resources and activities of the Tribe, and no-21-

memb er shall be denied any of the constitutional rights or guarantee s enjoyed by other citi zens 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 o f 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 th at qualifies under the Equal Protection Clause of the Fourteenth Amend ment

for protection from impairment, “when such impairmen t resulted fr om dilution by a false tally, cf. , United States v. Classic , 31 3 U.S. 299 (1941); or by a refusal to count votes from arbitrarily selecte d pre cincts, 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 State s protects the right of all qualified citizens to vote, in state as well as i n 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 courtpreviously 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 , 483These c ases are pre- Santa Clara , recognizing an implicit right to civil actio n 21 under t he ICRA against tribal officers and tribal councils. Santa Clara rejected th e right s 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

c ases simply as a recognition of the one-man-one-vote principle included in the ICRA.
-22- F.2d 700, 704-05 (8th Cir. 1973); Means v. Wilson , 522 F.2d 833, 839 (8th Cir. 1975). 21

The defend ants urge that these cases have all been implicitly overruled by th e Sant aClara

decision. In Santa Clara , a female tribe member brought an action fo r injun ctive 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 wer e barred by the tribe’s sovereign immunity, because nothing on the face of the ICR A purpo rted to subject the tribes to the jurisdiction of federal courts in civil actions fo r de claratory or injunctive relief. Id. at 58-59. Additionally, the Court found that th e ICR Adid not impliedly authorize a private right of action against the Puebl o government. Id. at 72.

T here are several reasons why the Santa Clara ruling does not control this case. First, in the case at hand, the government is assert ing jurisdiction under § 241, not under the ICRA. The only reason the ICRA needs to be referenced at all in this case is t o establish that a right to be free from fraud in a tribal election does indeed exist under the law s of the United States. There is nothing in the language of Santa Clara to indicat e tha t the rights under the ICRA are nonexistent or in any way invalid. Instead, Sant a Clara dealt with how those rights may be enforced, and concluded they could not b e enforced thro ugh a private right of action, in a civil lawsuit. Nothing in Sant a 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 enacte d ordinance of

the tribal government. In such a case, the threat to tribal sovereignty i s great because a federal court would be asked to sit in judgment of legislation enacted by a legitimate t

ribal government. In this case, the question is whether jurisdiction can be asserted over the illeg itimate, 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 t o depriv e the members of the Band of their civil rights guaranteed by the ICRA. Th e Band’s right to self-determination, which the court sought to protect in Santa Clara , is not being threatened by ensuring that vo ters are not defrauded. In fact, the Band’s right to free and open elections is vindicated by the present criminal action.
Third, in S anta Clara , the Court stressed that tribal courts are available t o vindicate rights created by the ICRA an d 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 b y 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 as serted under the ICRA, Santa Clara would not be dispositive, because the absenceof 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.” R awley Br. at 28. If by this the defendant means to imply th at criminal jurisdiction cannot exist without a corresponding private right o f action, hi s premise is incorrect. Courts repeatedly have held that there is no privat e right of action under § 241, even though the statute allows-24-

federal authorities to purs ue criminal charges. See, e.g. , Cok v. Cosentino , 876 F.2d 1, 2 (1st Cir. 1989) (“Only the United State s 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 statut e governing c onspiracies 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 priv ate 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 priso ner-made goods in interstate commerce, see McMaster v. Minnesota , 30 F.3d 976, 981-82 (8th Cir. 1994); the federal wire fraud statute, see Officia l Publications Inc. v. Kable News Co. , 884 F.2d 6 64, 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 suppo rt their argument that federal jurisdiction under § 241 cannot be asserted. Th e decision regarding private rights of action brought under the ICRA against a triba l government d oes not address the question of criminal jurisdiction asserted in this case.

In Stone , this court recently recognized that tribal sovereignty is “necessaril y 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 t o the Indian unless there exists some treaty right which exempts the Indian from the operation of th e par ticular 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.

C ontrary to the Clark and Ramsey’s argument, we find there is no reason wh y fed eral criminal jurisdiction over election fraud would work to undermine th e sovereignty of the tribe or its political integrity. First, no tribal custom or tradition is-25-

be ing threatened by the enforcement of criminal conspiracy laws. There is no triba l custo m or tradition of the Band of fraudulently using the election system to maintai n positions of power for a few corrupt individuals.
Second, as the Supreme Court stated in Santa Clara , tribal courts are th e 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 provide s individual Nati ve Americans a forum to air their grievances. However, tribal members
are not able to practice self-determination when, as is alleged here, a few corrup t individuals effectively control the entire tribal system. No purpose of tribal autonomy is served by allowing a corrupt, unrepresentative system to continue unabated.

Fi nally, it is relevant to note that tribal governments are dependen t soverei gns—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 beli eve failure of the United States to assert criminal jurisdiction over activity on a
res ervation when the tribal government no longer operates legitimately would be a n abrog ation of the U.S. government’s trustee relationship with tribes such as th e Chippewa. We thus conclude that Clark and Rawley may be p rosecuted 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

Bef ore 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 th e 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 con spiracy is not relevant to the conspiracies involving the Casino or the Commissions. The government asserted joinder was proper, alleging Clark, Rawley, andWadena joined in multiple conspiracies to misapply tribal funds for their personal
use.
Following a hearing on the defendants’ pr e-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 conc luded that on the face of the Indic tment, the government did not allege a “single, common purpose connecting th e elect ionfraud allegations to the casino and fishing commission allegations.” Unite d States v. Wadena , Crim. No. 3-95-102 (D. Minn. Jan. 24, 1996) (magistrate judge’ s repo rt and recommendation on defendants’ pretrial motions). The magistrate judg e recommended that the distr ict court sever Counts 1 through 28 from Counts 29 through 44. Id.The Honorab le 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 offens es charged, whether felonies or misdemeanors or both, are of th e same or similar character or are based on the same act or transaction or
on two or more acts or transactions connected together or constitutin g parts of a common scheme or plan.

-27- The district court disagreed, concluding the Indictment alleged three c onspiracies 23 tha t were a part of a series of acts or transactions, and joinder was proper. Unite d 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 woul d otherwise be ir

relevant 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. Th e district court denied the defendants’ motion to sever, finding severance was no t warranted. Id. During trial, the district court continued to deny defendants’ motions to
sever.

In the pre sent appeal, Clark and Wadena dispute the district court’s joinder o f 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’ claim s separately.

1. Joinder under Federal Rule of Criminal Procedure 8

Federal Rule of Cr

iminal 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 alle ged 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 par ticipated 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 o r trans actions that are pursuant to a common plan or a common scheme. See Unite d States v. Jones , 880 F.2d 55, 61 (8th Cir. 1989). “[T]he de fendants 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 denovo claims of misjoinder. An error involving misjoinder “‘affects substantial rights’ and requires reversal only if the misjoinder results in actual prejudice because it ‘had substanti al 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 th e government links the three conspiracies solely through an “overlap in personnel” and a “commonobjective of making money,” and such connections are an insufficient basis for joinder. See Clark Br. at 39-40. Clark also claims the government’sClark ’s contentions that joinder is improper because the election conspirac y 25
came later than the other two conspiracies, and because he ran unopposed in th e 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 t ribal funds, and Clark and Rawley engaged in the election conspiracy t o further that objective, are “unsupported by the i ndictment and factually impossible.” Id. at40-41. This is because Clark ran unopposed in the 1994 election, and according to the I ndictment, the non-election conspiracies were complete in March 1994—thre e months before the June 1994 election.
We disagree with Clark’s contentions. In this case, the government ch arged Clark withall of the offenses relating to both the non-election conspiracies and the electio n 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 i n personnel an d the common objective of making money. We deem it clear that th e In dictment

alleges Clark participated in a series of acts or transactions with the sol e purpose of furthering a common scheme of using his and others’ positions in triba l government to access tribal funds and misapply th ose 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 erro r woul d not require reversal. See Lane , 474 U.S. at 449. Clark contends reversal i s required be cause he has made a showing that there was a misjoinder that had a
su bstantial and injurious effect on the jury’s verdict. Specifically, Clark claims th e government used a “regrettable par ade of cumulative witnesses,” most of whom merelyLike Clark, Wadena also asse rts the three alleged conspiracies were unrelated 26 to one another, and the government’s attempt to link the three conspiracies through an “overlap i n personnel” and a “common objective of making money” is an insufficient basis for joinder. As stated above, we reject this allegation.

-30- testifiedthat they did not vote in the last tribal election, to show his bad character and impermissibly influence the jury’s determination of g uilt with respect to the non-election charges. See Clark Br. at 42.
We disagree with Cl ark’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 wa s specif ic to the election conspiracy, influenced the jury’s findings with respect to th e construction conspiracy and Commissions conspiracy. Third, the district court instructed the jury tha t each defendant was entitled to be treated separately, and the jury mus t return a separate verdict for ea ch defendant and for each crime charged. See, e.g. , Jury Ins t. 12, United States v. Wadena , No. 3-95-102 (D. Minn. June 24, 1996). The jur y ultimately acquitted one defendant of all charges and acquitted Clark and Rawley of one charge eac h. Finally, the government presented potent evidence of Clark’s guilt of the
c h arges for which he was convicted. In sum, we conclude that any alleged misjoinder did not ha ve 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 Cl ark, Wadena argues joinder in this case was improper. In particular , Wad ena claims that because the government did not allege that he was in any wa y involved in the election conspiracy, he should not have been tried with the othe r defendants who were alleged to have participated in all three conspiracies. For the 26S ignificantly, one election conspiracy witness who did mention Waden a 27 indicated it was Wadena who called the sheriff when he learned from a governmen t inv estigator

that certain election documents under investigation may have bee n deliberately shredded.
-31- reasons di scussed 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 tur ned his trial into an “election fraud circus” by callin g 136 election fraud witnesses to the stand, introducing nearly 600 election fraud exhibits, an d stating in its closing argument that all the defendants were guilty o f “controlling the

ballot box in order to control the cashbox.” See Wadena Br. at 22-23. Wadena asserts he suffered “overwhelming” prej udice 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 Waden a 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, th e majority of those witnesses simply testified they did not actually vote in the 199 4 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 o f 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 govern ment is prejudiced by a joinder of offenses or of defendants in an indictment or information or by suc h joinder for trial together, the court may order an election or separate trials of counts , grant a severance of defendants or provide whatever othe r 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 forinsp ection in camera any statements or confessions made by th e defendants whi ch the government intends to introduce in evidence at the trial.
Fed. R. Crim. P. 14.
-32- Wadena a lso alleges he suffered prejudice because the district court failed t o instruct the jury not to consider the extensive election fraud evidence against him. See WadenaBr. at 24, n.15. This argument is specious. Perhaps the district court did not sp ecifically tell the jury not to consider any election fraud evidence against Wadena

. However, in essence the di strict 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 separat e verd ict for each defendant and for each crime charged. Finally, the governmen t 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 th at 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 prop er 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-

wh en the defendant shows an abuse of discretion that resulted in severe prejudice. ” Unit ed States v. Crouch , 46 F.3d 871, 875 (8th Cir. 1995). “Severe prejudice occur s when a def

endant is deprived of an appreciable chance for an acquittal, a chance tha t [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 o ffenses and the defendants was a failure to f

ollow Rule 14 and constitutes an abuse of its discretion. Clark argues this refusal to sever the election counts from the no n-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 jur y, prevented the jury from compartmentalizing the evidence, and tainted it s verdict. He argues the distri ct 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 t o 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 wa s 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 distr ict court repeatedly refused to sever his trial from that of the other defendants, it abandoned its duty under Rule 14 and abused it s discretion. In support of this argument, Wadena makes essentially the same contentions he made with re spect to joinder. From our review of the record, and for the reason s 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 IR S auditors were preparing to conduct a civil audit at the time the govern ment

was conducting a criminal investigation into the same matters to b e examined b y the civil audit. As supporting evidence of this contention, Clark an d Wadena assert that in early November 1993, before the IRS formal ly notified defendants of the upcoming civil audit, Agent Nelson asked Greg Nygren, an IRS representativ e working on the civil audit, to fax him a copy o f a past tax return of Wadena’s. The civil audit was not referred to the CID until 1994.
Clark and Wadena complai n the IRS’s simultaneous investigations violated their Fou rthand Fifth Amendment rights. During trial, Clark and Wadena made variou s motions to suppress the evidence obtained from t he civil audit and any evidence derived therefrom. The di strict court denied the motions. On appeal, Clark and Wadena claim the distric t court erred in denying their motions. We review for clear error the fact s 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. C t. 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 crimin al investigation under the auspices of a civil audit.” United States v. Grunewald , 987 F.2d 531, 534 (8th Cir. 1993).-35-

Eviden ce obtained in the course of a criminal investigation, where th e defendant has not been apprised of the nature of the investigation, may be suppres sed only if the defendant establishes that: 1) the IRS had fir m indica tions of fraud by the defendant, 2) there is clear and convincin g evidence that the IRS affirm atively 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 , 5 50 F.2d 297, 299 (5th Cir. 1977)) (emphasis added). Although Clark an d Wadena allude to the three Grunewaldfactors, they do not directly address the factors or acknowledge their burden to establish the existence of thos e factors. See Wadena Br. at 10-19; Clark Br. at 44-46. Instead, they focus their arguments on Agent Nelson’ s knowledge of a

nd 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 reason s discussed below, we conclude the defendants have not shown the existence of th e Grunewaldfactors, 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 frau d must suspend the audit and refer the case for evaluation by the CID. See Grunewald , 987 F.2d at 534 (citing Audit Guideline s for Examiners , CCH Internal Revenue Manual (Audit), §§ 4231, 4564.21, 9322.1). A firm indication of f raud 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) hada firm indication of fraud and failed to suspend the civil audit is a question of fact

wereview 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. Furth er, Nygren specifically denied he suspected any frau d when he mailed the audit letter to Northern. Our review of Nygren’s tria l testimony pertaining to the simultaneous investigations likewise does-36-

not indicate Nygren had a firm indication of fraud and failed torefer the case to the CID. Thus, neither Clark nor Wadena have established the first Grunewaldfactor.
“[T]he mere failure of an IRS agent to inform a defendant that informatio n developed in an audit may result in a further criminal investigation does not indicat e affirmative and intentional dece it by the IRS.” Grunewald , 987 F.2d at 534. Clark and Wade na do not present clear and convincing evidence that the IRS affirmatively an d int entionally misled the defendants by conducting the civil audit of Northern with th e express purpose of obtaini ng records for the criminal investigation. Indeed, defendants po int to nothing more than knowledge by Nygren that Agent Nelson was conducting a crim inal investigation. Neither Clark nor Wadena have established the secon d Grunewald factor. Given Clark’s and Wadena’s failure to establish the first tw o Grunewald f

actors, we need not address the third Grunewaldfactor. In sum, w e conclu de the district court did not err when it denied Clark’s and Wadena’s variou s motions to suppress the evidence obtained from t he civil audit and any evidence derived therefrom.

C. Count 19 as a Cognizable Offense
As noted above, Count 19 of the Indictment ch arged Clark, Rawley, and Wadena withconspiring 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 fo r serving on the Commissions. The overt acts undertaken in furtheranc e of this conspiracy includedthe creation of the Commissions and the defendants’ receipt of variou s commission payments. The jury convicted all three defendants of this charge.
Before trial, the defendants moved to dismiss Cou nt 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 cognizableRawley 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 argume nt for the first time on appeal. The government provides no legal or factua l sup port for this contention. Moreover, Clark contends he raised the issue belo w because at the pretrial motion hearing, he adopted Wadena’s and Rawley’s mo tions and arg uments concerning jurisdiction, and this is a jurisdictional issue. For purposes o f 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 off

icial 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 an d Wadena base this contention on Runs After v. United States , 766 F.2d 3 47, 354 (8th Cir. 1985), which they claim controls this case.

In Ru ns After , several members of the Cheyenne River Sioux challenged th e validit y of two resolutions passed by the Cheyenne River Sioux Reservation Triba l Council (Tribal Council). 766 F.2d at 349. The two resolu tions, passed by a vote of the Tribal Council, barred certain tribal members from running in future tribal elections. Id. The plaintiffs challeng ed the resolutions under various federal civil rights statutes. The
cour t rejected the plaintiffs’ challenges, concluding, in part, that “individual member s of the Tribal Counc il, acting in their official capacity as tribal council members, cannot consp ire when they act together with other tribal council members in taking officia l 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 ow n directors , officers, and employees, each acting within the scope of his or he r employment)).

Runs Aft er 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 tw o 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 c ommission 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, whe n they wanted money for purchases, debts, etc., individually dir ected the tribe to issue them checks labeled as commission payments. Thes e individual payments were not collectively approved or issued by the RTC. For thes e
re asons, we conclude Runs After is distinguishable from this case. As Clark an d Waden aprovide no other support for this argument, we conclude Count 19 alleged a cog nizable offense, and the district court did not err when it denied their motions t o dismiss the count.

D. Interstate Nexus in Money Laundering Counts

Th e Indictment charged Clark and Wadena with various counts of mone y launderi ng, 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 gover nment offered no evidence to prove the element of an interstate commerc e nexus, whic h is an essential element of any § 1957 violation. The district court denied their motions.

Inthe present appeal, Clark and Wadena contend the district court erred i n denyi ng their Rule 29 motions. In response, the government claims the defendant s waived thei r right to challenge the denial of their motion when they failed to renew the motion at the close o f evidence, and even if this court concludes the defendants did not waive their right to appeal the denial of their motion, the government nonetheles s 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 m otion for acquittal if the def endant fails to renew the motion at the close of all of the evidence. Se e Edwards v. United S tates , 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 ri ghts of the defendant. See id. It appears neither Wadena nor Clar k 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 mot ion. 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 substant ial 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 ap pears this court has not determined the quantum of evidence necessary t o 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 chec ks drawn on federally-insured banks and services purc hased 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) ( c oncluding evidence that funds were deposited and withdrawn from an FDIC-insured institution provided sufficient proof of an interstate commerce nexus). The government presen ted evidence that the checks referenced in Counts 10 through 18 were al l deposi ted in either the First National Bank of Detroit Lakes, Minnesota or the Stat e Bank of Winger, Minn esota. As these institutions are FDIC-insured, the government’s evidence that these checks were deposited into theseinstitutions is sufficient proof of an inter state commerce nexus. See, e.g. , Kunzman , 54 F.3d at 1527. Thus, the distric t court did not err when it denied Clark’s and Wadena’s Rule 29 motions.-40-

E. Admission of Government’s Exhibit 97

Du ring 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 , si gned by Clark, and made payable to Jerry Rawley. The exhibit also consisted of the check’s register stub bearin g the number 3657, the name Jerry Rawley, and the amount of $15,000. Significantly, the stub also contained a partially-erased pencil notatio n “gift.” Before trial, Rawley raised three objections to the admission of the check stub portion of the exhibit into eviden ce: 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 re verse his convictions of Counts 1, 3, and 4, because the district court erred in admitting exhibit 97. We review for abuse o f discre tionthe district court’s decision that exhibit 97 was authenticated and did no t constitute inadmissible hearsay. See United States v. Henneberry , 719 F.2d 941, 94 8 (8th Ci r. 1983); United States v. Jackson , 67 F.3d 1359, 1364 (8th Cir. 1995). W e review de novo t

he 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 addr ess Rawley’s authentication argument first. A party authenticates a doc ument by presenting evidence sufficient to support a finding that the document i s what the party claims it to be. See Fed. R. Evid. 901(a). The party authenticating a docu ment need only prove a rational basis for that party’s claim that the document i s 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)). “Thi s may be done with circ umstantial evidence.” Id. The government offered sufficient evidence t o auth enticate exhibit 97. Thus, the district court did not abuse its discretion when i t decided the government properly authenticated exhibit 97.Clar k adopts Wadena’s arguments regarding jury instructions pursuant t o 30 Federal Ru le of Appellate Procedure 28(j) and Eighth Circuit Rule of Appellat e Procedure 28A(j).
-41- Rawley’s next contention is that the district court abused its discretion when i t
conc ludedthe partially-erased word “gift” on the check register was not hearsay. A writte n statement that would ordinarily be defined as hearsay is not hearsay if th e 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 Evidenc e 801(d)(2)(E). Therefore, we conclude the district court did not abus e its discretion when it decided the statement “gift” is not hearsay. Additionally, after a de novo review o f 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 di strict court invaded the province of the jury 30 by instructing the jury that th e government had already proven the essential elements of two charged off

enses: 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. S econd, Clark and Wadena claim the district court deprived them of du e 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 sub mitting a jury instruction relating to Minnesota notary law. Finally, Rawle y contends the d istrict court erred when it refused to provide the jury with a theory o f defense instruction he requested. We address these arguments in turn.-42-

1. Instructions Regarding Essential Elements of Offenses

In jury in struction 29, the district court cited to the jury pertinent aspects of 1 8 U.S.C. § 1163, including the section’s definition of the term “I ndian tribal organization.” T he court then stated “[t]he White Earth Band of the Minnesota Chippewa Tribe is an Indiantribal 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. § 66 6 violation. One element of a § 666 offense is that the accused must be
an a gent of an Indian tribal government or any agency thereof. 18 U.S.C. § 66 6 (emphasis added). In jury instruction 33, the c ourt told the jury it must find “that during the ti me 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 a s 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 vio lations 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 in struction 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 ar e instructe d 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 obj ected to this instruction when th e district court made it. On appeal, Rawley contends this instruction wa s irrelevant, and “[t]he only effect the instruction could have on the jurors was either t o 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.” SeeRawley Br. at 35-36. We review instructi on 53 for harmless error. See United Stat es v. Ryan , 41 F.3d 361, 366 (8th Cir. 1994) (citing United States v

. Voss , 7 87 F.2d 393, 398 (8th Cir. 1986)). In this case, the issue of whether numerous absen tee ballots were properly notarized by state-certified notaries was an importan t asp ectof the prosecution of the election conspiracy and offenses arising from tha t conspiracy. Thus, jury instruction 53 was not irrelevant and was not in error.

4. Rawley’s Proposed Theory of Defense Instruction

W ith 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 2levels. This adjustme nt may not be employed if an abuse of trust or skill is included in the base offens e 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 absente e vote prior to the June 14, 1994, election. A ccordingly, in order to find that
a defe ndant had the intent to have a false vote cast in the 1990 or 199 4 election(s), you must find that the government proved such intent, beyond
a r easonable doubt, by showing evidence that the defendant intended t o 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 th e presence of a notary public.
See Addend um to Rawley Br. Rawley contends he was entitled to this instructio n because it was timely, supported by the evidence a nd set forth a correct statement of the law (i.e. 18 U.S.C. § 241). SeeRawley Br. at 36-37 (citing Uni ted States ex rel., Means

v. S olem , 646 F.2d 322, 328 (8th Cir. 1980)). We disagree. The district cour t adequ ately and correctly instructed the jury on the elements of the § 241 offenses, and Rawley is not e ntitled 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 Waden a, the district court grouped together Counts 10 th rough 18, which are the money laundering offenses. Pursuant to § 3B1.3 of th e 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-leve l enhancement to the offense level of Counts 10 through 18. We review de novo a district

cour t’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 th e application of § 3B1.3 to circumstances in which the abuse of a position of trus t signifi cantly facilitated the commission or concealment of the offense, and th e govern ment

presented no evidence that they abused a position of trust to deposit th e checks re ferenced in Counts 10 through 18 or to conceal the deposit of those checks

. SeeWadena Br. at 37-38; Clark Br. at 48. Althoug h Counts 10 through 18 involved the dep osit of various checks, Clark and Wadena fail to acknowledge that the mone y launderi ng offenses for which the jury convicted them involved more than the mer e depos it 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. th e check s) and using that property to engage in monetary transactions, in violation of 1 8 U.S.C. § 1957 . Therefore, the district court did not err when it applied a two-leve l 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 fo r joinder." Ante at 27-28. Notwithstanding the court's unfettered confidence i n 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 p ropriety of joinder is not limited to the face of th e indictment) (John R. Gibson, Fagg, Bowman, Magill, and Beam, JJ., joining). I agree with the court's conclusion here th at 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 th e 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 an d Rawley for a violation of 18 U.S.C. § 241. Therefore, I dissent in part.
In asserting subject-matter jurisdiction under this g eneral federal criminal law, the court not only disregards the longstanding federal policy of advancing tribal self

de termination, 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 trib al 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. § 1 152 (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 rightto prosecute members for fraud in a tribal election is a necessary and intimat e aspectof tribal self-government. Federal prosecution of tribal election crimes wil l severely interfere with the tribes' ability, as separate sovereigns, to eradicate such-47-

corruption in their own elections and their own gover nment. Until Congress specifically provides forjurisdiction over this type of internal tribal matter, we must avoid th e 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. Jurisdic tionover a dispute arising on an Indian reservation "is governed by a complex patchwork of federal, state, and t ribal law." Duro v. Reina , 495 U.S. 676, 680 n.1 (1990). Because Indian tribe s pre-existed the Constitution, they "still possess those asp ects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status." United States v. Wheel er , 435 U.S. 313, 323 (1978). One aspect of this retained sovereignty includes t he power to "control their own int ernal relations," Duro , 495 U.S. at 685, which necessarily includes crimina l "jurisdiction of all controversies between" tribal members , e.g. , In re Mayfield , 141 U.S. 107, 115-16 (1891). Congress has broad powers to mod ify this retained sovereignty by conferring federal jurisdicti on over crimes committed on Indian reservations. See, e.g. , Talton v. Mayes , 163 U.S. 376, 384 (1896). Thus, the question i s whether Congress has provided jurisdiction for this federal prosecution.

The co urt correctly finds no basis for jurisdiction in the Indian Country Crime s Act and the Indian Major Crimes Act. See 18 U.S.C. §§ 1152 and 1153. Faced with congressi onal silence, however, the court turns to a general federal law, which by it s terms applies to all persons. See 18 U.S.C. § 241. Section 241 provides that it i s unlawful for two or more persons to "conspire to injure, oppress, threaten, or intimidate any pers on in any State, Territory, Commonwealth, Possession, or District in the fre e exercise or enjoyment of any right or privilege secured to him by the Constit ution or laws of the United States." Id.
Assuming that Congress intended to include American Indians within the scope of la ws which, by their terms, are applicable to all persons, we have applied genera l federal law s to tribal crimes. See, e.g. , Stone v. United States , 506 F.2d 561, 563 (8th-48-

Cir. 1 974). However, we have refused to extend this source of jurisdiction to purel y int ernal tribal matters because that would intrude upon tribal sovereignty. See, e.g. , Un itedStates v. White, 508 F.2d 453, 455 (8th Cir. 1974) (stating that "area s traditionally left to tribal self-government, those most often the subject of treaties, have enjoyedan exception from the general rule that congressional enactments, in term s applying to all persons, i ncludes 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 recog nized the unique status of tribes, Indians, and their lands, an d has required that the congressional purpose of a conflicting law clearly require that it apply to Indians before Indian r ights are held implicitly infringed"). Thus, the qu estion is whether prosecution under section 241 for tribal election fraud intrudes upon tribal self-government.
The court mischaracterizes this inquiry by looking to whether th ere 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 i s necessary to maintain political integrity. See Montana v. United States , 45 0 U.S. 5 44, 566 (1981) (discussing the inherent tribal power to regulate activities tha t "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 th e import ant interest of the tribe in abating corruption within its own government

. Mon itoring tribal elections is an area traditionally left to tribal government and an y contrary holdi ng 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 ele ction policies and remedies into tribal elections. The wisdom of such a decision i s best leftto Congress, which is obviously better positioned to determine its potentia l impact. Rat

her 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. Se e ante at 16. The result is a vague and incoherent test for jurisdiction. We shoul d 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 fundamenta l assault on a democratic society and a serious violation of the civil rights of triba l members. Nonetheless, only Congress can remove this aspect of sovereignty. Because Congress has not so acted, I would decline to assert jurisdiction over the electio n 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 b ecause the conspirators used a voting machine to cast votes for both federal an d local candidates. See Anderson v. United St ates , 417 U.S. 211, 225 (1974). The Court express ly 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. Sim ilarly, we have applied section 241 to a local election, but only where th e 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 applicatio n of section 241 to purely local, much less tribal, elections. We cautioned t hat "we do not reach the question left undecided by the Suprem e Cou rt—whether

18 U.S.C. § 241 extends to conspiracies to cast votes in purely loca l 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 th e 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.