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A stock swindler or a tax cheat may act based on a recognized personality disorder, e.g. DSM-III-R 301.70, or he may act based on simple greed and the belief that he can get away with it. Psychiatrists may be able to detect mental conditions that generate criminality, and thus would qualify as experts to testify about such conditions. But that does not make them experts on human character.

That is not to say there will be any shortage of candidates for the title of expert. Among the first probably would be the clergy, who deal regularly with sin and virtue, good and evil, and the like. Of course, once we recognize the clergy as experts in character, we would have to avoid offense to the First Amendment, cf., Welsh v. United States, 398 U.S. 333, 338, 26 L. Ed. 2d 308, 90 S. Ct. 1792 (1970), by recognizing also a Coxey's army of lay moralists, ethicists, and pretty much anyone else willing to set up a booth on the fair ground--including, as a matter of professional courtesy if nothing else, judges. All in all, this is not an appetizing prospect.

The simple truth is that the notion of expert character testimony, although it has been bandied about in the literature for some time, compare, e.g., Curran, "Expert Psychiatric Evidence of Personality Traits," 103 U. Pa. L. Rev. 999, 1013 (1955) (endorsing such evidence) with, Falknor and Steffen, "Evidence of Character: From the Crucible of the Community to the Couch of the Psychiatrist," 102 U. Pa. L.. Re v. 980, 994 (1954) (criticizing such evidence), is one of those ideas whose time has not yet come, and with common sense and a modicum of luck it never will. Rule 702 of the Federal Rules of Evidence provides that, "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert ... may testify thereto." As this Court wrote in Andrews v. Metro North Commuter R. Co., 882 F.2d 705, 708 (2d Cir. 1989), "For an expert's testimony to be admissible under this Rule, however, it must be directed to matters within the witness' scientific, technical, or specialized knowledge and not to lay matters which a jury is capable of understanding and deciding without the expert's help." Character is a subject on which jurors do not need and therefore should not get expert guidance. United States v. Webb, 625 F.2d 709, 710-11 (5th Cir. 1980). To suggest otherwise is at best unhelpful.

B.

Finally, while fashioning an absolute rule about what sort of cross-examination should be permitted at a trial, the majority itself appears to have disregarded a bit of guidance on the wisdom of such appellate rule-making that the Supreme Court provided in Michelson, supra, albeit in the form of dictum. That case and its history are instructive. The case originated in this Circuit, and appears to have been heard by the Supreme Court at least in part at the request of the author of the Circuit opinion. That author, Judge Clark, urged that the rule permitting a reputation character witness to be cross-examined about other bad acts of the accused in order to test the witness' grounds for knowledge, should be changed. He doubted that trial judges could fashion effective instructions:

"Because, as Wigmore says, the jury almost surely cannot comprehend the judge's limiting instruction, the writer of this opinion wishes that the United States Supreme Court would tell us to follow what appears to be the Illinois rule, i.e., that such questions are improper unless they relate to offenses similar to those for which the defendant is on trial."

United States v. Michelson, 165 F.2d 732, 735 n. 11 (2d Cir. 1948). The Supreme Court took the case, but left the prevailing rule undisturbed. It wrote that despite criticism, the law as it stood "has proved a workable even if clumsy system when moderated by discretionary controls in the hands of a wise and strong trial court." 335 U.S. at 486. As the majority opinion illustrates, those discretionary controls worked well here; lest anyone miss the point, the trial court made the obvious explicit by instructing the jury specifically on the limited purpose for which the evidence at issue was received. Slip op. at 8, 15; App. 1422, 1433, 1461. Those discretionary controls should not be abandoned in favor of an inflexible rule. Justice Frankfurter, concurring in Michelson, put the matter even more forcefully:

"Despite the fact that my feelings run in the general direction of the views expressed by MR. JUSTICE RUTLEDGE in his dissent, I join the Court's opinion. I do so because I believe it to be unprofitable, on balance, for appellate courts to formulate rigid rules for the exclusion of evidence in courts of law that outside them would not be regarded as clearly irrelevant in the determination of issues. For well-understood reasons this Court's occasional ventures in formulating such rules hardly encourages confidence in denying to the federal trial courts a power of control over the allowable scope of cross-examination possessed by trial judges in practically all State courts. After all, such uniformity of rule in the conduct of trials is the crystallization of experience even when due allowance is made for the force of imitation. To reject such an impressive body of experience would imply a more dependable wisdom in a matter of this sort than I can claim.

"To leave the District Courts of the United States the discretion given to them by this decision presupposes a high standard of professional competence, good sense, fairness and courage on the part of the federal district judges. If the United States District Courts are not manned by judges of such qualities, appellate review, no matter how stringent, can do very little to make up for the lack of them."

335 U.S. at 488-89.

For the foregoing reasons, as to part I of the majority opinion, I concur only in the judgment.

¹ Pub.L. 93-595, §3 , Jan. 2, 1975, 88 Stat. 1959.

² "(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct."

³ "CAUTIONARY STATEMENT.... The purpose of DSM-III-R is to provide clear descriptions of diagnostic categories in order to enable clinicians and investigators to diagnose, communicate about, study and treat the various mental disorders. It is to be understood that inclusion here, for clinical and research purposes, of a diagnostic category such as Pathological Gambling or Pedophilia does not imply that the condition meets legal or other nonmedical criteria for what constitutes mental disease, mental disorder, or mental disability. The clinical and scientific considerations involved in categorization of these conditions as mental disorders may not be wholly relevant to legal judgments, for example, that take into account such issues as individual responsibility, disability determination, and competency."

 

 

[98-2 USTC ¶50,849] United States of America , Appellee v. Darrell Chip Wadena, Appellant United States of America , Appellee v. Jerry Joseph Rawley, Jr., Appellant United States of America , Appellee v. Rick Clark, Appellant

(CA-8), U.S. Court of Appeals, 8th Circuit, 96-4141, 96-4145, 96-4146, 8/11/98, 152 F3d 831, 152 F3d 831. Affirming an unreported District Court decision

[Code Secs. 7203 and 7602 ]

Evidence: Criminal prosecution: Civil audit: Criminal investigation: Motion to suppress.--Tribal leaders who were convicted of a variety of financial crimes were not entitled to suppress evidence derived from an IRS audit of a corporation that was owned by one of the defendants and that served as a conduit for improper payments to the defendants. The fact that the civil auditor was aware of a concurrent IRS criminal investigation involving some of the same matters did not establish that the IRS used the civil audit to develop its criminal investigation. The defendants did not show that the civil auditor had firm indications of fraud by any of the parties, and his failure to inform them that information from the civil audit might result in a further criminal investigation did not amount to affirmatively and intentionally misleading them. D.M. Grunewald (CA-8), 93-1 USTC ¶50,122 , followed.

Kenneth Wayne Saffold, Jeanne J. Graham, Assistant United States Attorney, Minneapolis , Minn. , for appellee. Ronald I. Meshbesher, Meshbesher & Spence, 1616 Park Ave., Minneapolis, Minn. 55404, for appellant. Rick Clark, Longby , Minn. , pro se.

Before: MCMILLIAN, LAY and BEAM, Circuit Judges.

AMENDED OPINION

LAY, Circuit Judge:

In June 1996, Rickie Lee Clark, Jerry Joseph Rawley, Jr., and Darrell "Chip" Wadena were convicted in federal district court of conspiracy, in violation of 18 U.S.C. §371, theft or bribery concerning programs receiving federal funds, in violation of 18 U.S.C. §666, engaging in monetary transactions in property derived from specified unlawful activity, in violation of 18 U.S.C. §§1957 and 2, and willful misapplication of tribal funds, in violation of 18 U.S.C. §1163. In addition, Clark and Rawley were convicted of mail fraud, in violation of 18 U.S.C. §§1341 and 2, and conspiracy to oppress free exercise of election rights, in violation of 18 U.S.C. §241. ¹

Clark, Rawley, and Wadena appeal their convictions. On appeal, they jointly and severally challenge the federal court's jurisdiction to prosecute the charges against them. They also raise several trial and procedural errors. For the reasons discussed below, we affirm all judgments of conviction.

I. Background

The 880,000-acre White Earth Reservation ("Reservation") is located in northwest Minnesota . The Reservation is home to the White Earth Band ("Band"), one of the six constituent bands of the Minnesota Chippewa Tribe. The Band consists of 22,000 members. Approximately 3,800 of the Band's enrolled members live on the Reservation, and the remaining members live throughout the United States . The Reservation Tribal Council ("RTC") (formerly known as the Reservation Business Committee) governs all aspects of the Band, including its economic activity. ²

The RTC consists of five members who serve four-year terms. The Band elects the members by general elections held every two years. To be eligible for election, a candidate must be an enrolled member who resides on the Reservation. During the time frame relevant to this case, Clark, Rawley, and Wadena all served on the RTC. Wadena served as Chairman, Rawley served as Treasurer, and Clark served as Councilman.

The offenses for which Clark and Rawley were convicted arose from three conspiracies: (1) the construction conspiracy; (2) the commissions conspiracy; and (3) the election conspiracy. Wadena's convictions arose solely from the construction conspiracy and the commissions conspiracy. We detail these conspiracies below.

A. The Construction Conspiracy

In 1985, Congress enacted the White Earth Reservation Land Settlement Act ("WERLSA"). 25 U.S.C. §331. The purpose of the WERLSA was to settle numerous claims involving large portions of land on the Reservation. Id. As part of the Act, the United States appropriated $6.6 million "for economic development for the benefit of the White Earth Band of Chippewa Indians." Id. In 1991, the RTC authorized the use of approximately $5 million of this money for construction of a casino on the Reservation called the Shooting Star Casino ("Casino"). The Casino project involved approximately $24 million.

The RTC appointed Clark to oversee construction of the Casino. ³ The RTC also hired Indian-owned Gordon Construction, Inc. ("Gordon") to act as general contractor for the project. Gordon subcontracted with Northern Drywall and Construction, Inc. ("Northern") for installation of drywall and various painting services. Northern did not submit a formal bid for the subcontract. Prior to the subcontract in question, Northern had only worked on small construction projects, and in the years prior to the Casino project, Northern's gross revenues never exceeded $50,000. Clark owned Northern, and he served as its president.

Construction of the Casino began in mid-1991 and was completed within one year. The Casino was quite successful; it created more than 1000 jobs and generated millions of dollars in revenue. In 1993, for example, the Band grossed $50 million, a majority of which came from the operation of the Casino. The RTC had control over the Band's spending of all non-federal revenue such as the revenue from the Casino.

In 1993, the civil examination unit of the Internal Revenue Service ("IRS") conducted an audit of Northern. During the audit, examiner Greg Nygren discovered Northern had made payments to Wadena totaling over $428,000. Northern made the first payment to Wadena in July 1991, about four months before the drywall subcontract was publicized. In response to inquiries about the payments, Clark and Wadena claimed Wadena held an undisclosed ownership interest in Northern, and the payments represented Wadena's share of profits from Northern. However, Wadena never mentioned this alleged ownership interest on his 1990 financial statements or on loan applications he submitted in 1990. Further, Northern's accountant did not know of Wadena's alleged interest. Later, Clark falsified and backdated Northern's corporate minutes and stock certificates in an attempt to document Wadena's ownership interest in the company.

In 1992, Northern also made a payment to Rawley in the amount of $15,000. Clark and Rawley claimed the payment was for consulting services. In reality, Northern made the payment to Rawley to secure Rawley's silence about Northern's payments to Wadena, who was Rawley's long-time political rival.

The government indicted Clark, Rawley, and Wadena on August 29, 1995. The Indictment charged defendants with eighteen counts arising from the construction of the Casino. Count 1 alleged that all three defendants conspired to misapply tribal funds, 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. ⁴ The jury convicted Clark, Rawley, and Wadena of all counts related to the construction conspiracy.

B. The Commissions Conspiracy

The RTC members created two commissions of which they were the sole members: the Gaming Control Commission and the Fishing Commission ("Commissions"). The RTC members assumed no additional duties by serving on the Commissions, and the Commissions themselves were essentially functionless. ⁵ Nonetheless, Clark , Rawley, and Wadena received substantial payments for their service on the Commissions. ⁶ At irregular intervals, and when the desire arose, Clark, Rawley, and Wadena directed the issuance of tribal funds to themselves, and they directed the Band's accounting department to code the checks as payment for commission meetings. These payments were made from the Band's general treasury, and when combined with Clark 's, Rawley's and Wadena's RTC salaries for the years 1990 to 1993, the payments amounted to over $1.2 million.

In the 1995 Indictment, the government charged Clark, Rawley, and Wadena with ten counts arising from the Commissions conspiracy. Count 19 alleged the defendants conspired to misapply tribal funds, in violation of 18 U.S.C. §§371 and 1163. The object of this conspiracy was to obtain tribal funds in the form of excessive commission payments. Counts 20 through 28 alleged various acts of misapplication of tribal funds, theft or bribery concerning programs receiving federal funds, and money laundering. ⁷ The jury convicted Clark and Wadena of at counts relating to the Commissions conspiracy. The jury convicted Rawley of all counts's except for one count of missapplying tribal funds.

C. The Election Conspiracy

In addition to the convictions set forth above, Rawley and Clark were also found guilty under 18 U.S.C. §241 for conspiracy to oppress free exercise of tribal election rights. As noted above, the RTC members are elected every two years. Because most of the Band's members do not live on the Reservation, the majority of members vote by absentee ballot. The Minnesota Chippewa Tribe prescribes absentee ballot voting procedures for its constituent tribes. During the time frame relevant to this case, these procedures provided that a person who wished to vote by absentee ballot would first request a ballot from the Band's authorities. The voter would then complete the ballot and place it in an envelope upon which was printed an affidavit the voter signed and had notarized. The voter would then send the ballot directly to election headquarters where it would be tallied. During the 1994 election, numerous absentee ballots were fabricated and falsely notarized. Both Clark and Rawley had a hand in improperly notarizing absentee ballots, and Clark himself forged numerous ballots. The government emphasizes that Clark and Rawley used the United States mail as well as notaries licensed by the State of Minnesota to perpetuate the absentee ballot fraud.

In the 1995 Indictment, the government charged Clark and Rawley with sixteen counts relating to the election conspiracy. The government did not charge Wadena with any counts relating to the election conspiracy. Count 29 alleged that Clark and Rawley conspired to injure and oppress voters, in violation of 18 U.S.C. §241. ⁸ Section 241 makes it unlawful for

two or more persons [to] conspire to injure, oppress, threaten, or intimidate any person in any State [or] Territory . . . in the free exercise or enjoyment of any right or privilege secured to him [or her] by the Constitution or laws of the United States, or because of his [or her] having so exercised the same. . . .

The object of this conspiracy was to procure the election of certain candidates to tribal positions by causing election officials to corruptly discharge their duties and by causing fraudulent ballots to be cast. Counts 30 through 44 alleged various acts of misapplication of funds, mail fraud, false statements, and obstruction of justice. ⁹ The jury convicted Rawley of all counts relating to the election conspiracy. The jury convicted Clark of all counts relating to the election conspiracy except for one count of using tribal funds to pay people to assist him and others in gaining re-election.

II. Overall Jurisdiction

Each defendant challenges his convictions on various grounds. First, we address the defendants' overall challenge of the federal court's jurisdiction to prosecute them for the charged offenses. The defendants make two basic challenges: (1) the only federal law applicable to the defendants, as Native Americans, are those encompassed within the Indian Country Crimes Act, 18 U.S.C. §1152, and the Indian Major Crimes Act, 18 U.S.C. §1153; (2) alternatively, the defendants urge, even if general federal criminal laws do apply to them, Public Law 280 (codified at 18 U.S.C. §1162) granted Minnesota state courts exclusive jurisdiction over crimes involving Indians and arising in Indian country.

The defendants' first jurisdictional challenge is broad-based and if true, would require this court to dismiss all charges. This particular jurisdictional claim is allegedly derived from historic interpretation of the "patchwork" of federal statutes and early case law affecting the sovereignty of Indian tribes in America . This area of the law is not easily discerned and has arisen in numerous cases both in this court and other circuit courts of appeal. ¹⁰

The general laws of the United States were made applicable to Indian Country through the Indian Country Crimes Act, 18 U.S.C. §1152. ¹¹ The second paragraph of the Act contains an exception to this jurisdictional grant for any crime committed by one Indian against another. As early as 1883, the Supreme Court in Ex Parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883), applied this exception and dismissed a federal prosecution for murder of one Indian by another. In 1885, in order to curb a perceived lawlessness resulting from the Crow Dog decision, Congress passed the Indian Major Crimes Act, 18 U.S.C. §1153, which provides the federal courts with exclusive jurisdiction over certain enumerated crimes. ¹²

The Indian Major Crimes Act allowed for federal prosecution of certain enumerated crimes, and today, the federal government has jurisdiction over fourteen major crimes when they are committed on an Indian reservation. The Indian Major Crimes Act does not contain an Indian-against-Indian exception. Nonetheless, the defendants argue that as a result of the Indian Major Crimes Act, the federal government no longer has jurisdiction under §1152 to prosecute crimes perpetrated by one Indian against another, unless the crime is one enumerated in §1153. ¹³ In support of this argument, the defendants cite United States v. Quiver, 241 U.S. 602, 36 S.Ct. 699, 60 L.Ed. 1196 (1916), wherein the Supreme Court observed that the inclusion of certain offenses within the Indian Major Crimes Act "carries with it some implication of a purpose to exclude others." 241 U.S. at 606, 36 S.Ct. 699.

In sum, the defendants argue that the only crimes which may be the basis for federal court jurisdiction are those within the Indian Country Crimes Act and the Indian Major Crimes Act. As the defendants acknowledge, this court has rejected this claim on several occasions. See, e.g., Blue, 722 F.2d at 384-86; Stone v. United States, 506 F.2d 561, 563 (8th Cir. 1974); United States v. White, 508 F.2d 453, 454-55 (8th Cir. 1974). We recognize that when addressing claims like the one made here, our court and other courts of appeal have issued opinions that seem confusing and somewhat inconsistent. ¹⁴ However, there are several reasons why we believe our earlier precedent controls.

First, many courts of appeal ¹⁵ recognize that federal courts may enforce general federal criminal laws against all persons, including Indians within Indian country. ¹⁶ Federal statutes of general applicability, those in which situs of the offense is not an element of the crime, are not encompassed within the Indian Country Crimes Act. As a result, the Indian-against-Indian exception contained in the Indian Country Crimes Act does not apply to federal criminal laws of general applicability.

The Second Circuit in Markiewicz, 978 F.2d 786, and the Seventh Circuit in Smith, 562 F.2d 453, emphasized that only federal laws which seek to protect a "peculiar" federal interest may be prosecuted. ¹⁷ For example, in Smith, the offense was charged under 18 U.S.C. §111 for forcible assault on a federal officer. The Smith court found that the district court had concurrent jurisdiction with the tribal court, because of the "peculiarly Federal nature" of the assault. 562 F.2d at 458. However, this distinction actually is difficult to apply, given the presumption of jurisdictional authority of Congress to pass federal laws. If Congress passes any federal act, assuming it has constitutional authority to do so, there always exists a federal concern and interest. For this reason, identifying a federal interest in a general federal law in order to override tribal sovereignty seemingly is redundant.

At the time that the Indian Country Crimes Act was passed, it may have been assumed, as Felix Cohen points out, that federal laws outside of enclave laws were not applicable to the Indian Country. See Cohen, supra, at 296-97. However, as Indian law evolved, that premise was discarded. General federal criminal laws directed to all persons became recognized as applying equally to Native Americans within Indian Country. See Federal Power Comm'n v. Tuscarora Indian Nation, 362 U.S. 99, 116-17, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960); Cohen, supra, at 284-85.

Moreover, the Indian Country Crimes Act speaks only to the "general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States . . . ." 18 U.S.C. §1152 (emphasis added). Because situs of the offense is not an element of any of the statutory violations committed by the defendants, none of the defendants claim the crimes for which they were convicted were enclave laws. Thus, because the offenses do not fall within the Indian Country Crimes Act, they are not subject to the Act's exception relating to crimes committed in Indian Country by one Indian against another. ¹⁸

The Indian-against-Indian exception contained in the Indian Country Crimes Act manifested, as Cohen observes, "a broad respect for tribal sovereignty, particularly i