USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-1811

UNITED STATES,

Appellee,

v.

FRANCIS BOOTS,

Defendant, Appellant.

____________________

No. 94-1812

UNITED STATES,

Appellee,

v.

ELLWYN COOK,

Defendant, Appellant.

________________

No. 94-1813

UNITED STATES,

Appellee,

v.

DEWEY LAZORE,

Defendant, Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

___________________

____________________

Before

Stahl, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

____________________

Robert A. Costantino, for appellant Francis Boots.

____________________
Ronald Cohen, for appellant Ellwyn Cook.
____________
Stephen R. Kaplan, for appellant Dewey Lazore.
_________________
Margaret D. McGaughey,
_____________________

with whom Jay P. McCloskey, United

________________

Attorney, was on brief for appellee.

____________________

March 29, 1996

____________________

Sta

CAMPBELL,

consolidated

appeal,

Senior Circuit
Judge.
_______________________

defendants-appellants

In

Francis

this

Boots,

Ellwyn Cook, and Dewey Lazore challenge their convictions for

conspiracy,

in violation of 18 U.S.C.

371, to commit three

offenses, and

their convictions of the substantive offenses:

1)

to devise

interstate

scheme

commerce with

or

artifice

intent to

using

the

defraud Canada

wires

in

and the

Province of Nova Scotia of excise duties and tax revenues, in

violation of

18

artifice

deprive

to

U.S.C.

Reservation in Maine

1343; 2)

the

residents

crime

under Maine

1952.

of

the

a scheme

with the

their police

1343 and 1346; and 3) to

intent to facilitate

state law,

Judgment was entered

or

Passamaquoddy

of the honest services of

chief, in violation of 18 U.S.C.

travel interstate

to devise

in violation

in the

bribery, a

of 18

United States

U.S.C.

District

Court for the District of Maine following a jury trial.

I. Facts
I. Facts

Construed

government,

in

the evidence

the

light

most

indicates that

November 1992, defendants took part

favorable

to

the

between April

and

in a scheme to transport

tobacco

from a

Native American

reservation in

upstate New

York ("Akwasasne") into New Brunswick, Canada, without paying

the taxes

tobacco

and excise duties

by

Canadian

levied upon the

laws.

The

tobacco

importation of

was

transported

-33

surreptitiously

into

Canada

through

the

Passamaquoddy

Reservation

in

Pleasant

Point,

Maine,

bypassing

customs

checkpoints at the Canadian border.

At

the trial,

Passamaquoddy Tribe

Stanley testified that on

some

tobacco business

friend, Francis

his

Beverly Pierro,

Later that day,

to discuss

a friend

of his

Stanley approached

friend Frederick Moore, who was then serving as chief of

police of

Point.

were

April 15 he was called

by

Boots.

member Anthony

the Passamaquoddy Tribe ("the

Stanley

told Moore that

in Calais,

evening

to

familiar with

Maine

discuss

two Mohawks from

and wanted

"mov[ing]

Tribe") at Pleasant

to

meet with

tobacco."

Akwasasne from having spent

years earlier at an

Moore

Akwasasne

him

that

(who

was

time there twelve

Indian solidarity demonstration1) agreed

to meet.

However, unknown to Stanley, Moore then contacted a

law enforcement officer at the Bureau of Indian Affairs (BIA)

for

advice and

received

a go-ahead

to

see what

the

two

Mohawks wanted.

The four -- Stanley, Moore, Cook, and Lazore -- met

that evening at a motel.

that Cook and

It could be found from the evidence

Lazore knew

that Moore was

a police

chief.2

____________________

1.
used

The terms "Native

herein

are

American," "Indian," and

taken

from

the

defendants'

"aboriginal"
briefs

and

testimony.

2.

Stanley testified that when Moore asked in their initial

phone call whether the

Stanley said

yes.

two knew that he was

Moore testified

-44

that

a police chief,
at

the

evening

The two said that they wanted to bring tobacco from Akwasasne

to

Passamaquoddy and sell it to Moore and Stanley, who would

profit by selling it to established markets in New Brunswick,

Canada.

Moore declined to purchase their

he would

listen further

to their

tobacco, but said

objectives and

the price

they would pay for his involvement.

Cook

explained

that

the

aim

was

to

transport

tobacco "unmolested by either government."

He indicated that

they could not transport the tobacco themselves because their

names

were

known.

enforcement

efforts

crosspoints,

potential

Moore's

pay

for

on

the

storage

growth

group proceeded

reservation,

place

in

to

their

for

the

Moore $20 per case

tobacco,

trading

At the end

the proposal and

____________________

and

the

with

Cook offered to

Moore said

reply within

of the meeting, he was given

which he split with Stanley.

law

border

activities,

of tobacco transported.

think about

discuss

possible

help and his recruitment of others.

that he would

week.

The

some tobacco

meeting he was not in uniform, but was wearing a baseball hat

that had the insignia of the Pleasant Point Police Department
on it.

He admitted

that the two defendants never stated at

the meeting that they

police
was

chief.

armed and

were approaching him because he

was a

However, Moore testified that he told them he

was

cop.

discussed law enforcement on

The

four

also

specifically

the reservation, in response to

Lazore's inquiry about whether they had anything to fear from

police
Moore

officers.

The

following day,

Lazore and

Cook saw

when he was in uniform in his police cruiser and waved

to him from their car.

-55

Moore updated his contact

agreed

to

work

undercover

Investigation (FBI).

of the FBI and

the

The following

Federal

next day

Bureau

sites near

St. Andrews, New

Moore took Stanley to some

of

week he went with agents

Royal Canadian Mounted Police (RCMP)

possible offloading

Canada.

for

at BIA and the

to view

Brunswick,

of the same places later

in the month.

Defendants

Stanley, Pierro,

Cook

and her

and Lazore

next met

with Moore,

boyfriend, Jake Boots

(brother of

defendant, Francis Boots) on April 28,

navigation routes and

matters.

agencies.

They discussed

law enforcement concerns,

Moore told the

schedules and

1992.

group that

he had

communications of most of

among other

access to

the

the law enforcement

They met again the next day, and Moore took Pierro

and Jake Boots by boat from the Passamaquoddy

the Canadian shore while explaining points

The

first

tobacco delivery

was

Reservation to

about navigation.

made

on May

2.

Defendants Cook, Lazore, and Francis Boots, along with Pierro

and

Jake Boots,

house,

where

navigated it

They

brought 50

they met

to St.

cases

Moore.

Andrews

of tobacco

Moore

to Stanley's

supplied a

with Stanley

boat and

and Jake

Boots.

met two contacts who paid them $1000, which Stanley and

Moore split

similar

(Moore giving his share to the FBI).

Moore made

deliveries across the border accompanied by Stanley,

-66

Jake

Boots, or both on May

and Stanley

attempted

returned with

not

show.

an FBI and

July

11, May 16, and

to deliver

the cases

tobacco

June 27.

on June

because their Canadian

Moore

1,

but

contact did

Moore delivered tobacco on June 9, accompanied by

border agent.

No deliveries

were made

between

and November due to the incarceration of a key contact,

Stanley

Johnson.

Moore and

Jake Boots, assisted by Pierro,

made the last delivery on November 7.3

Moore testified that, in all, almost 1850 kilograms

of

tobacco were

The

total

transferred

government's expert

across the

on Canadian

border.4

taxes stated

that the

per kilogram tax on tobacco was $106.47 Canadian.5

inferred that

taxes had not been paid,

were not stamped as is customarily

conspiracy counts

of a

Province of Nova Scotia

element,

done.

The wire fraud and

____________________

that wires were

scheme to defraud

Canada and

of tobacco taxes due.

the government

He

because the packages

in the indictment alleged

used in furtherance

this

Canadian

introduced

the

To establish

evidence of

four

3.

Anthony Stanley, Beverly Pierro, Jake Boots, and Stanley

Johnson were also charged

with various offenses, and entered

guilty pleas during the trial.

4.

Omitting

enforcement

the

June

agents,

the

transfer
amount

by

Moore

transferred

and
was

law
1500

kilograms.

5.

This sum includes

an excise duty of $18.33,

of $35.64, and a provincial excise tax of $52.50.

-77

excise tax

interstate telephone conversations

between Moore and

Pierro

from May 1992 through July 1992.

During the period of tobacco deliveries, Moore

the

FBI's request) did not

governor, who

of

the

disclose his role

supervised him.6

The

(at

to the tribal

tribal governor learned

Moore's activity in late June, when Stanley brought it to

attention of the tribal council.

June 25 without

neglect of

believed

pay and

Moore was suspended on

was later dismissed

duty and insubordination.

the

dismissal

was not

in August

He testified

result

of his

for

that he

tobacco

trading activities, but rather related to an investigation of

the tribal governor.

Boots

and

Cook

argued,

in

defense,

that

they

pursued the above activities

aboriginal

belief

with a good faith belief

right to trade tobacco freely

was based

upon their

Ganiengehaga Nation, to a

in an

with Canada.

adherence, as

members

This

of the

constitution called the "Great Law

of Peace," and on the fact that their reservation, Akwasasne,

includes lands in New

two

defendants

formal

York State, Ontario, and Quebec.

testified

border between

Canadian right

that they

the United

recognized

States and

to tax the sacred product

The

neither

Canada nor

of tobacco, though

____________________

6.

For his

federal
December,

investigatory

government $350
a

$25,000

work, Moore

per

week between

payment

expenses.

-8-

in

received from

the

August and

mid-

December,

and

various

they

admitted

right and

believed

they were

imposed such

the

imposts.

shipped tobacco

market in Canada.

because of

aware that

He

was

Canada claimed

Boots

maintained that

intended

further stated that

his navigational

skills and

such a

he

for an

Indian

Moore was

hired

not because

of his

statusas thePassamaquoddy policechief. Lazore didnot testify.

II. Discussion
II. Discussion

Defendants assert on appeal that the district court

erred

in the following ways:

indictment or grant

1) in refusing

a judgment of

to dismiss the

acquittal, on the

ground

that a "scheme to defraud" Canadian authorities of duties and

taxes is not cognizable

finding the

Maine bribery statute, which

for the Travel

chief

of a

judgment of

scheme to

services

American reservation;

acquittal on

the wire

2) in

provided the basis

Act violation, applicable to

Native

Moore as police

3)

in denying

fraud counts charging

deprive Passamaquoddy Tribe members

of the honest

of their police chief, despite alleged interference

of the federal

refusing

under the wire fraud statute;

statute with

to include their

tribal sovereignty;

specific version of

and 4)

in

a good faith

defense

in the

convictions

of

jury instructions.

conspiracy

and

-99

They

claim that

independent

their

statutory

violations

must

be

reversed

because

of

these

errors.

Defendant Boots also challenges his sentence.7

A. Wire Fraud:
A. Wire Fraud:

Scheme
Scheme

to Defraud Canada of Duties

to Defraud Canada of Duties

and Taxes
and Taxes

The indictment charged

the

conspiracy count

theory

that defendants

and four

a wire

fraud violation

independent counts

intended to

defraud Canada

in

upon the

and the

Province of Nova Scotia of tobacco duties and taxes, using or

causing

the wires

to be used

interstate in

furtherance of

____________________

7.

Lazore argues that the district court erred in denying a

motion

to

dismiss

jurisdiction to

He

indictment

based

prosecute Native Americans

tobacco into Canada, a

Jay Treaty.

the

on

language in

of

for transporting

right claimed to be protected

relies on

lack

by the

Article III of

the

Treaty of

Amity, Commerce and Navigation

(1794) between the

United States and Great Britain, which provided:

[N]or

shall the Indians

passing or repassing with

their

own proper

and

nature,

pay

whatever.

goods

for

the

But goods

packages,

unusual

effects of

same
in

among

any

whatever

impost

or

bales,

or other

Indians,

shall

duty
large

not

be

considered as goods belonging bona fide to Indians.

The Jay

Treaty, Nov. 19,

118.

The

government

1794, U.S.-Gr.Brit., 8
has argued

persuasively

Stat. 116,
that

this

argument grounded in the Jay Treaty was waived by defendants'

failure to press it

sufficiently in the district court.

In

any event, we discern no error in the lower court proceedings

on

this ground.

rel. Albro,
___________

279

See generally Karnuth v.

______________ _______
U.S.

231, 239

(1929)

United States ex
________________
("[T]he

privilege

accorded by article 3 is one created by the treaty, having no

obligatory existence apart from that instrument, .
is, in no sense, a vested right.
nature.

It

necessarily
Akins v.
_____
1977)
of

wholly

ceases to

promissory

operate in a

United States,
_____________

and

permanent in its
prospective,

state of war.

551 F.2d 1222,

It

and

. . .");

1229-1230 (C.C.P.A.

(duty exemption of Jay Treaty was abrogated by the War

1812, and

federal

is

It is not

. . .

though

similar language

was incorporated

in

tariff acts until 1897, upon repeal of that last act

no

such

language

preserving

the

right

was

reenacted

thereafter).

-1010

this

place

31,

scheme.

The

relevant

telephone

between Pierro and Police

June 7, and July

supports

a reasonable

24, 1992.8

inference

communications took

Chief Moore on

May 25, May

The government's evidence

that the

calls were

made

between Maine and New York, where Moore and Pierro resided.

Defendants argue

denying

their motion

alleged failure

to

that the district court

to dismiss

show a

section 1343 requires.9

made no affirmative
___________

customs

authorities

and

(2)

proper

the government's

"scheme to

defraud"

as

Defendants insist, inter alia, that

_____ ____

(1) they

activities;

based on

erred in

misrepresentation to

relative

their

to

their

scheme had

as

Canadian

tobacco

its

trading

object

no

protected property interest within the wire fraud statute.

____________________

8.

Defendants need not personally use the wires as long as

such use was a

reasonably foreseeable part of the

which they participated.

scheme in

See United States v. Maze, 414 U.S.

___ _____________
____

395,

399 (1974); Pereira v.

_______

United States, 347

_____________

U.S. 1, 8-9

(1954).

9.

The wire fraud statute provides:

Whoever, having devised or intending

to devise any

scheme

for obtaining

or artifice

money or

to defraud,

property by means of

pretenses, representations,

or

false or fraudulent

or promises, transmits

or causes to be transmitted by means of wire

communication

in

interstate or

any writings, signs,

for

the

artifice,
imprisoned

purpose
shall

be

executing
fined

under

such
this

sounds

scheme

or

title

or

not more than five years, or both . . .

.
18 U.S.C.

foreign commerce,

signals, pictures, or

of

. . .

1343.

-1111

We turn first

absence

false

of any

customs

to defendants'

affirmative misrepresentation
___________

declaration

activities non-fraudulent

government responds

authorities

Cf.
___

for

rendered

wire

-- such

their

fraud

the

as a

smuggling

purposes.

The

that scheming to bypass Canadian customs

to meet the

United States
_____________

1975) (scheme

--

and not to declare the

form of deceit

insistence that

tobacco was a sufficient

requirements of section

v. Brewer,
______

528 F.2d

to sell cigarettes into

registering with tax officials

492, 496

1343.10

(4th Cir.

another state without

there, as required by Jenkins

Act, is mail fraud);

see also McEvoy Travel Bureau, Inc. v.

________ ___________________________

Heritage Travel, Inc., 904 F.2d

______________________

denied,
______

786, 791 (1st

Cir.), cert.
_____

498 U.S. 992 (1990) ("the scope of fraud under these

[federal fraud]

statutes is

broader than common

law fraud,

and . . . no misrepresentation of fact is required").

We

smuggling

see

no

scheme

need,

structured

however, to

like

decide

the

instant

whether

one,

if

____________________

10.

Counts 1

and 18

through 21

charged that

defendants

devised a scheme
in

violation

Excise

of Sections

236

Act, Revised Statutes

E-14 and amendments thereto;

&

240(1), of

the

of Canada, 1985, Ch.

Sections 155 & 160 of

the Customs

Act, Revised Statutes

of Canada, 1985

(2d Supp.)

Ch. 1; Section 25(1)(a)

of the Tobacco

Tax Act, Ch.

470 of the

Revised Statutes of

Scotia, 1989 and amendments thereto;

of

the Health

Services Tax

Nova

and Section 7

Act, Ch.

198 of

the

Revised Statutes of Nova Scotia, 1989.

Part II of the Customs Act imposes an obligation on importers
to declare dutiable goods and pay any taxes or duties imposed
by other laws relating to customs.

-1212

practiced upon, say, federal

United States,

would be

or other authorities within the

a fraudulent scheme

within section

1343.

Even

assuming

it would

be,

we face

the

separate

problem that the object of the scheme here was exclusively to

defraud a foreign government, rather than our own, of customs

and

tax revenues imposed under foreign law.

added factor pushes defendants'

We believe this

scheme beyond the parameters

of the frauds cognizable under section 1343.

The

and

prosecution, relying

mail fraud

convictions

on cases

for schemes

upholding wire

to evade

domestic

taxes, argues that customs and tax revenues, even though owed

solely

to a

foreign

latter's making,

of the wire

States
______

governmental body

under

constitute money and property

and mail

fraud statutes.11

v. Dale, 991 F.2d

____

819, 849 (D.C.

laws of

the

for purposes

See, e.g.,
_________

United
______

Cir.) (federal tax

revenues), cert. denied,

____________

(1993);

114 S. Ct. 286

United States v.
_____________

Cir. 1991)

Helmsley, 941
________

and 114 S.
___

F.2d 71,

Ct. 650

93-95 (2d

(state income taxes), cert. denied, 502 U.S. 1091

____________

(1992); United States v. Bucey, 876 F.2d 1297, 1309-1310 (7th

_____________
_____

____________________

11.
the

The Supreme Court has

government's interests

held that only frauds affecting

as

property holder

come within

section 1343, see Carpenter v. United States, 484 U.S. 19, 25

___ _________
_____________
(1987);

McNally
_______

v. United States,
______________

483 U.S.

350,

358 n.8

(1987) (mail fraud), although Congress has since criminalized

schemes to deprive another of

the intangible right to honest

services as well,

see 18 U.S.C.
___

18, 1988), infra.

_____

The Court has analyzed mail and wire fraud

offenses

similarly, because

statutory language.

they

1346 (effective

share the

same

November

relevant

See Carpenter, 484 U.S. at 25 n.6.

___ _________

-1313

Cir.)

(1989);

(federal income

see also
________

taxes), cert. denied, 493

_____________

Otto G.

White Collar Crime

___________________

Obermaier

9.02[1]

& Robert

at 9-30 n.

U.S. 1004

G. Morvillo,

64 (1994) (federal

and state tax cases).

But

none

of

the prosecution's

cited

wire fraud

cases have involved a scheme to deprive a

of its own

urges

taxes and similar

that section 1343

foreign government
_______

exactions.12

should apply,

The

prosecution

because it

does not

____________________

12.

A somewhat

undecided,

similar

factual pattern

in this circuit in

arose, but

a civil context

went

in Nodine v.
______

Textron, Inc., 819 F.2d 347 (1st Cir. 1987).

_____________
The case
to

that is perhaps

most factually analogous

the present -- though not particularly helpful here -- is

United States v.
______________

Gafyczk, 847
_______

which involved a scheme to

F.2d 685

(11th

Cir. 1988),

import cigarettes into the United

States and to export them, repackaged with other materials in

mislabeled containers, into Italy without paying
there.
121

duties owed

The charges there included violations of 49 U.S.C.

(falsely

making a

bill of

lading),

18 U.S.C.

1001

(making a false statement in a matter within the jurisdiction

of

a U.S. government agency or

Service]), and
United States).
however,

the

18 U.S.C.
Neither
court

of

department [the U.S. Customs

371 (conspiring
wire nor
appeals

to defraud

mail fraud was

relied

on

the

charged;

McNally

in

_______
interpreting the

"intent to defraud" element

of section 121

to require that the government assert a pecuniary or property

interest which was the target of
690.

the fraud.

Defendants' convictions on these

for failure to show such an interest.

that

such

deprivation

could
_____

See id. at 689___ ___

counts were reversed

See id.
___ ___

have

("It is clear

occurred

if

the

appellants' actions had been even partially intended to evade

the payment of export duties or other levies properly owed to
the United
that
the

States.") (emphasis

"the fact that

appellants'

because

the evidence may

intent to

that nation is not

effort to defraud

defraud

The

Italy is
_____

of

no import

object of the

of 49 U.S.C.App.

Id. at 690
___

court expressed no opinion

court added

well have established

identified as the

in violation

alleged in the indictment.

The

supplied).

121"

as

(emphasis supplied).

as to whether

such a theory

would have been viable under section 121 (let alone under the
federal fraud statutes, to which section 121 was compared).

-1414

describe

any

defraud.

particular

It punishes

type

use of

of

victim of

the

wires in

scheme

to

interstate or

foreign commerce in furtherance of "any scheme or artifice to

defraud."

why

If

domestic tax fraud

not foreign

Federal wire

private

revenue frauds

as well,

prosecutions have been based

foreign

United States
______________

falls under section

businesses

v.

Lewis,
_____

it is

F.3d

225

contended.

on frauds against

and individuals.

67

1343,

(9th

See, e.g.,
__________

Cir.

1995)

(reversing wire

foreign

bank

fraud conviction for

where the

a scheme to

jury instruction

defraud a

did not

charge a

property interest as the target of the scheme); United States

_____________

v. Van Cauwenberghe, 827 F.2d

________________

wire fraud

424 (9th Cir. 1987) (affirming

conviction involving scheme to

investment broker

and corporation),

defraud a Belgian

cert. denied,
____________

484 U.S.

1042 (1988).

However,

schemes

government of duties and

tax

aimed

at

depriving

taxes are not the same

foreign

as domestic

frauds, nor are they even the same as private commercial

frauds aimed at foreign business entities or individuals.

issue

is not only whether

"money or property,"

being

targeted, but

importantly here,

more

At

as such, is

the extent

to

which

into

constitutional

our

intertwined

laws

analysis.

and

prudential considerations

Foreign

with enforcement

customs

of

and tax

a foreign

factor

frauds

are

sovereign's own

and policies to raise and collect such revenues -- laws

-1515

with which

this country may

or may not

be in

sympathy and

over

which,

recognition

reluctant

in

of

any

event,

we

this,

our

courts

to enforce

foreign

have

no

have

authority.

In

traditionally been

revenue laws.

The

"revenue

rule" -- a firmly embedded principle of common law, traced to

an opinion by Lord Mansfield, Holman v. Johnson, 98 Eng. Rep.

______
_______

1120

(K.B. 1775)

-- holds

that courts

generally

enforce foreign tax judgments, just as they

foreign

criminal

foreign

non-tax

judgments,

civil

judgments

jurisdictional, or fundamental

interfere.

483

& n.1

See Restatement
___

(1987);

Sabbatino, 376

although

see also
_________

will not enforce

they

unless

public policy

will not

will

enforce

due

process,

considerations

(Third) of Foreign

Relations

Banco Nacional de Cuba

_________________________

U.S. 398, 448 (1964)

v.

(White, J., dissenting)

_________

("[O]ur courts customarily refuse

to enforce the revenue and

penal

since

laws of

foreign state,

no country

has

an

obligation to further the governmental interests of a foreign

sovereign.") (footnote

omitted); Her Majesty the Queen in

___________________________

Right of the Province of British Columbia v. Gilbertson, 597

__________________________________________
__________

F.2d 1161, 1164-1165 (9th

revenue

positive

public

rule has

been

rather than

order of

Cir. 1979).

said to

moral

another

be

The rationale

that revenue

law; they

country and

laws

are

directly affect

the

hence

should not

subject to judicial scrutiny by American courts; and

courts

effectively to

pass on

of the

such laws

raises

be

for our

issues of

-1616

foreign relations which are assigned to and better handled by

the legislative and executive branches of government.

Although this case does not require us to enforce a

foreign tax judgment

1343

conviction

enforcement

as such, upholding

would

amount

defendants' section

functionally

of Canadian customs and tax laws.

to

penal

The scheme to

defraud at issue -- proof of which is essential to conviction

-- had as its

laws.

To

sole object the violation of

convict, therefore,

Canadian revenue

the district court

and this

court must determine whether a violation of Canadian tax laws

was intended and, to the extent implemented, occurred.

ruling,

our

courts

would

challenges to such laws

or

intended

effectively

revenue

to violate

passing on

laws of

underlying the

concern is

have

pass

on

and any claims not to

them.

the

a foreign

Where

defendants'

have violated

a domestic

validity and

country, the

revenue rule

the principle

to

In so

court is

operation of

the

important concerns

are implicated.

of noninterference by

Of particular

the federal

courts in the legislative and executive branches' exercise of

their foreign policymaking powers.

National policy judgments

made

pursuant

federal courts

to

that

were to

authority could

give

be

general effect

undermined

to wire

if

fraud

prosecutions for schemes of this

type aimed at violating the

revenue

It

laws

federal statute

of any

country.

criminalizing the

-1717

is noteworthy

smuggling

that the

of goods

into

foreign

countries

punishes

foreign government has

546.

activities

a reciprocal

law.

only

See
___

if

the

18 U.S.C.

A decision to uphold the present convictions would have

the effect of licensing

the

such

wires to

engage

prosecutions against persons who use

in smuggling

governments irrespective

schemes against

of whether a

foreign

particular government

had the reciprocal arrangement called for in section 546.

In

that

by

the case of Canada,

this specific legislative

affirming

not condone

question

the instant

defendants'

Canada's

to be sure,

judgment would be undermined

wire fraud

smuggling

revenue

we cannot say

laws

conviction.13

activities,

or

the

cooperation in respect to our mutual border.

nor

We do

do

we

desirability

of

But application

of the

wire fraud statute to a scheme of this type does not,

and cannot, turn upon our attitude towards Canada alone.

The

revenue rule has not risen or fallen over the centuries based

on

country-by-country judicial assessments

of the potential

____________________

13.

The United States has a treaty with Canada to exchange

information
Convention
(ratified

about
to

smuggling

across

Suppress Smuggling,

by Great Britain), 44

search has failed

to make

the

border.

June 6,

1924, U.S.-Can.

Stat. 2067.

it clear whether

See
___

Yet a cursory
a violation

of

Canadian revenue or tax laws would be grounds for extradition

of

the violator

to

Canadian authorities,

suggesting

doubt as to the degree of cooperation mutually promised.

Treaty
983.

on Extradition,

Dec. 3,

1971, U.S.-Can.,

some
See
___

27 U.S.T.

We have not made a close examination into the extent of

Canada's reciprocal
under 18 U.S.C.

arrangements

546.

such as

are

contemplated

Even assuming Canada were to qualify,

we see nothing in the wire fraud statute that would

to limit

the statute

to wire frauds

allow us

practiced against

the

revenue laws of nations having reciprocal arrangements.

-1818

for

equipped

foreign

nor

assessments.

branch,

relations

conflict.

constitutionally

Courts

empowered

Prosecutors, who operate

are

to

neither

make

such

within the executive

might of course be expected not to pursue wire fraud

prosecutions based

on smuggling

schemes aimed at

blatantly

hostile countries, but whether

determination left

Rather, the

this

area

solely

conduct is criminal cannot be

to

prosecutorial

longstanding rule instructs the

alone,

so

that the

discretion.

courts to leave

legislative

and

executive

branches may exercise their authority and bargaining power to

deal

with

government's

such

issues,

revenue

and

laws

also

are not

so

that

subjected

foreign

to intrusive

scrutiny by the courts of this country.

It is

true that the

existence of a

more specific

penal statute, such as the current anti-smuggling statute, 18

U.S.C.

general

546, would not

federal

comfortably

be deemed impliedly

anti-fraud

be given to both.

statutes

if

See, e.g.,
_________

to preempt the

effect

could

United States v.
_____________

Brien, 617 F.2d 299, 310 (1st Cir.) (holding that Commodities
_____

Futures Trading Act does not preempt or impliedly repeal wire

or

mail

denied,
______

fraud statutes

446

U.S.

and

919

citing

(1980);

related cases),

Brewer,
______

528

F.2d

cert.
_____

at

498

("[Defendant's] use of the mails to escape regulation added a

different

element and

new dimension

comply with the [Jenkins] Act.").

-1919

to

her failure

to

Effect, however, cannot be

given to section 1343 in these conditions without threatening

the

reciprocity

generally

rule.

the

provision

salutary

application

546, and

principles underlying

authorize the

of the

speak more clearly

which

section

the

offending

revenue

If Congress, notwithstanding these inherent tensions,

had meant to

Our

in

wire

courts to enforce

fraud statute,

than it has."

conclusion is further

criminal

statute will

spoken clearly.

be

we think

McNally,
_______

of two possible

enforced only

of

"it must

483 U.S. at 360.

supported by the

holds that the harsher

this kind

rule of lenity,

readings of a

when Congress

has

See id. at 359-360; Fasulo v. United States,

___ ___

272

______

_____________

U.S. 620, 629 (1926) ("[B]efore one can be punished [for

mail fraud], it must be shown that his case is plainly within

the statute.").

We,

therefore, hold

customs frauds, such as

defraud

within

defendants'

section

the

that foreign

the instant one, are not

meaning

substantive

of

section

convictions

of

schemes to

1343,

wire

tax and

and

fraud

that

under

1343, based on the scheme to defraud Canada and Nova

Scotia of duties and taxes, must be reversed.

Our

wire fraud

requires us

U.S.C.

holding that it

was legal error

statute to defendants' Canadian

to set aside the conspiracy

371 as well.

Jurors "are not

to apply the

smuggling scheme

conviction under 18

generally equipped to

determine whether a particular theory of conviction submitted

to them is contrary

to law," though they are

generally able

-2020

to analyze evidence and recognize a

inadequate.

Griffin v.
_______

theory that is factually

United States,
______________

502

U.S. 46,

59

(1991); United States v. Nieves-Burgos, 62 F.3d 431 (1st Cir.

_____________
_____________

1995) ("Griffin distinguishes

_______

States, 396 U.S. 398

______

may have rested

evidence,

on an

in

on a

cases, like [Turner

______

v. United
______

(1970)], which concern convictions that

basis that

was not

supported by

the

from those concerning convictions possibly resting

invalid ground as a result of an error of law [such as

Yates v.
_____

district

under

United States, 354

______________

court instructed

section

371

if

the

the

U.S.

298 (1957)]).

jury that

government

it could

proved

The

convict

beyond

reasonable doubt that defendants conspired to commit at least

one

of

the

conspiracy.

three

offenses

Because it is

charged

as

objects

impossible to tell

of

the

which ground

the jury based the conspiracy conviction upon, the conviction

cannot stand.

See Yates, 354 U.S. at 312.

___ _____

The government contends that even if the wire fraud

count falls,

the conspiracy

based

on

at least

Since

the

jury

statutes,

unanimously

the

found

argument

found

conspiratorial

one of

beyond

agreement

conviction

the

two other

substantive

goes,

should be

we

reasonable

extended,

objects alleged.

violations

should

with

affirmed

infer

doubt

of

that

that

respect

to

defendants, to at least one legally sufficient object.

contention might

be persuasive

-2121

where a district

those

it

the

all

This

court does

not give a "one-is-enough" charge, or

a special verdict form

is required of the jury, such that the reviewing court is not

speculating on

what the jury did

or did not decide.

however, it is

at least possible

that the jury did

itself whether the conspiratorial

two valid

objects (interstate

bribery, and a

with

respect

overall

Here,

not ask

agreement extended to

travel with intent

the

to commit

scheme to defraud another of honest services)

to all

defendants,

conspiratorial agreement

instead

focusing on

to transport

the

tobacco into

Canada without paying taxes and duties.

Carman,
______

Cf. United States v.

___ _____________

577 F.2d 556, 567-568 (9th Cir. 1978) ("If the jury,

when considering

the conspiracy

crime

embodied

in the

crime

conviction the

overturned. . . .

appellate

court

count, focused only

subsequently

overturned substantive

conspiracy conviction

jury

would have

issues put to it been framed differently.");

States v.
______

Palazzolo, 71
_________

F.3d 1233

defendants were convicted of

also

objects

erroneous

of

also should

Criminal sanctions cannot rest on

thinks the

on

(6th

done

one

and

had the

see also United

________ ______

Cir. 1995)

district

offense,

be

what an

(where

substantive offenses that

conspiracy,

instruction

on the

court

court

were

gave

reversed

conspiracy conviction because

least to the

possibility that the jury

guilty only of conspiring

count);

"the verdict

United States v.
______________

lends itself

at

found the defendants

to violate" the legally inadequate

Musacchia,
_________

955 F.2d

(2d Cir.

-2222

1991).

Further,

the two legally

sufficient objects of

the

conspiracy

were

not

so

intricately

intertwined with

the

invalid wire fraud count that we can necessarily say that the

conspiracy

conviction

had a

legally

correct

basis.

Cf.
___

United States v. Huebner, 48 F.3d 376 (9th Cir.) ("Under the

______________
_______

facts in this case,

jury to have

found a

[tax] evasion

the United

[T]here

to

be

and abet

finding a conspiracy

obstructing [tax]

no danger

that

the

for the

attempted

to defraud

collection.

jurors based

. .

their

verdict on finding that the object was to aid and

abet attempted

was

conspiracy to aid

without also

States by

could

conspiracy

it would not have been possible

evasion without also finding

defraud

collection."),

the

United

cert. denied,
____________

116

States

S. Ct.

that the object

by

71

obstructing

(1994).

The

conspiracy conviction

for

is vacated and that

further proceedings not

which

may, in

inconsistent with this opinion,

the prosecution's

discretion, include

trial on a properly narrowed indictment.

at

327-328;

Palazzolo, 71
_________

count is remanded

F.3d at

a new

See Yates, 354 U.S.

___ _____

1238; United States v.

______________

Ochs, 842 F.2d 515, 529 (1st Cir. 1988).

____

B. Maine
B. Maine

Bribery Statute as a
Bribery Statute as a

Basis for Violation

Basis for Violation

of the Travel Act

of the Travel Act

We

turn

next

to

the

interstate travel to facilitate

law, in violation of 18 U.S.C.

Travel

Act

punishes

"[w]hoever

substantive

counts

of

bribery, a crime under Maine

1952 and 2.

travels in

The Interstate

interstate

or

-2323

foreign commerce . . . with intent to . .

establish, carry

activity,

such

on,

or

and thereafter

an act.

18 U.S.C.

facilitate

performs

1952(a).

. promote, manage,

or attempts

any

unlawful

to perform"

Bribery in violation of

state law is an "unlawful activity" within section 1952.

See
___

United States v. Arruda,

_____________
______

715 F.2d 671, 681 (1st

Cir. 1983).

The Maine bribery statute, charged here, provides in relevant

part:

1. A

person is guilty

of bribery in

official and

political matters if:

A.

He promises,

benefit

to

offers,

another

or
with

influencing the other's action,

recommendation,

or

gives any
the

pecuniary

intention

of

decision, opinion,
other

exercise

of

discretion as a public servant. . . .

___________________

17-A M.R.S.A.

benefit"

Id.
___

602(1)(A) (emphasis

means economic

supplied).

gain, including money

"Pecuniary

or property.

602(2)(C).

Defendants were convicted

of traveling between New

York and Maine during the spring of 1992 with intent to carry

on

and facilitate the bribery

of Moore, whom

they knew was

the

police

chief

of

the

thereafter

performing and

facilitate

bribery,

Evidence

tobacco

which

was

causing to

and aiding

presented

at the end

Passamaquoddy

that

and

be performed

abetting the

Cook and

of their first

Reservation,

Lazore

acts to

offense.

gave

meeting on April

and

Moore

15 (at

he was offered payment for his involvement); Cook paid

Moore $1000

(Canadian) for

the tobacco

-2424

delivery on

May 2;

Boots

paid

Moore

$600 for

the

delivery

on

May 16;

and

defendants discussed with Moore concerns with law enforcement

on the

reservation and elsewhere which

might interfere with

their objectives.14

Defendants challenge their

convictions for

Act violations on two principal grounds:

Travel

1) Moore, as police

chief of the Passamaquoddy

Indian Reservation, was not, they

argue,

within the

bribery

a "public servant"

meaning of

the Maine

statute, supra; and 2) even if a public servant, his

_____

official duties did not include enforcing Canadian or federal

laws and

thus were not influenced.15

We do not

find merit

in either contention.

"Public servant"

code

is defined in the

as "any official officer

government and any

__________

consultant

or

or employee of

person participating

otherwise,

Maine criminal

in

any branch of

as juror,

advisor,

performing a
governmental
____________________________

____________________

14.

The

indictment

additional payments
mid-September
original

charged

that

Pierro

totaling $3000 to Moore

of 1992.

offer of $20

The record
per carton was

arranged

for

between May and

indicates that

Cook's

not precisely carried

out, as Moore and Stanley usually were to share the payments.

15.

Defendants also contend

for Moore

to have been bribed

was suspended from office.

this claim

does not get

that it was legally impossible

after June 25,

1992, when he

We agree with the government that

defendants far, since

the relevant

dates for the Travel

Defendants have

Act violations preceded his suspension.

not challenged

the Travel Act

charge other

than to attack the predicate crime of bribery in violation of

state law.

-2525

function."
________

Id.
___

2(21) (emphasis

supplied).

"Government,"

in turn, is defined as:

the

United

municipality

States,
or

any
other

state

or

political

any
unit

county,
within

territory

belonging

to

the

State,

the

United

States, or any department, agency or subdivision of

any of

the foregoing, or any

association

carrying

out

corporation or other
the

functions

of

government or formed pursuant to interstate compact

or international treaty.

Id.
___

2(13).

police

Whether the foregoing definitions encompass the

chief of

the Passamaquoddy

Tribe at

Pleasant Point

requires consideration of the Tribe's legal relationship with

the State of

Maine.

That relationship is spelled out in the

federal Maine Indian Claims Settlement Act of 1980, 25 U.S.C.

1721-1735 ("Settlement Act"),

to Implement the Maine

6201-6214 ("Maine

Tribe
_____

which ratified Maine's Act

Indian Claims Settlement, 30 M.R.S.A.

Implementing Act").

v. State of Maine,
______________

75 F.3d 784,

See Passamaquoddy
___ _____________

787 (1st Cir. 1996);

Couturier v. Penobscot Indian Nation, 544 A.2d 306 (Me. 1988)

_________

(the

_______________________

purpose

basic,

of the

organic

provisions

Implementing Act

document establishing

of the

relationship

was

the

"to serve

broad

between the

as a

and basic

State and

the

Maine Indians").

Under these acts, the Passamaquoddies

to be "subject to

criminal

extent

are declared

the laws of the State and to the civil and

jurisdiction of the courts of the State to the same

as any other person

provided.

30

M.R.S.A.

. . .

6204;

-2626

therein" unless otherwise

see also
_________

25

U.S.C.

1725(b)(1) (approving the

jurisdictional scope set forth

the Maine Implementing Act).

Act

in

However, the Maine Implementing

also grants powers and duties to the Tribe comparable to

those of a municipality (in addition to special authority

regulate internal tribal matters).

See 30 M.R.S.A.
___

to

6206(1)

("Except as otherwise provided in this Act, the Passamaquoddy

Tribe . . .

shall have, exercise

and enjoy all the

rights,

privileges, powers and immunities, . . . and shall be subject

to

all the duties,

obligations, liabilities and limitations

of

a municipality of and subject to the laws of the State");

id.
___

6206(2) (granting a tribe, its officers, and employees

immunity from suit when "the respective tribe . . . is acting

in

its governmental

capacity

to

the

same extent

as

any

municipality or like officers or employees thereof within the

State"); Penobscot Nation v. Stilphen, 461 A.2d 478, 488 (Me.

________________
________

1983).

Tribe-appointed law enforcement officers "possess the

same powers and are subject

and

training

enforcement

M.R.S.A.

for

requirements

officers

6210(4).

for enforcing

to the same duties,

under

as

other

the laws

corresponding

of

the

These powers include

state laws

within Indian

laws, not applicable here,

limitations

State."

law

30

shared authority

territories (except

over which a

tribe may have

exclusive jurisdiction).

See id.
___ ___

The Maine legislature

in most respects,

the powers and

6210(4).

has thus explicitly equated,

obligations of tribes

and

-2727

tribal law enforcement officers with

those of municipalities

and

corresponding law enforcement

544 A.2d at 308 (tribes

under

officers.

See Couturier,
___ _________

share the immunity of municipalities

the Maine Tort Claims Act by operation of section 6202

of the Maine Implementing Act, and this immunity extends to a

tribe-appointed

capacity).

police

Since a

officer

acting

law enforcement

in

governmental

officer employed by

municipality would undoubtedly qualify as a "public servant,"

see 17-A M.R.S.A.

___

2(13) & 2(21), so too, we believe, would

a tribe-appointed law enforcement officer.

"public

or

servant" extends, in any event, to a person (whether

not an

juror,

The definition of

official officer

advisor,

consultant

governmental function."

Id.
___

or employee)

or

"participating as

otherwise

2(21).

performing

Moore was charged with

enforcing

state

reservation.

laws

We

and

think

tribal

ordinances

he fits,

within

therefore, rather

the

easily

within the Maine statute's definition of public servant.

Defendants' reliance

837

F.2d 1281

initially appear

(5th

upon United States

_____________

Cir. 1988)

is

analogous, because

v. Tonry,
_____

misplaced.

Tonry
_____

may

it involved

charges of

conspiracy to violate and substantive violation of the Travel

Act

based

chairman of

on interstate

an Indian

case

which involves

law,

the sole

travel

with intent

to

bribe the

tribe.

However, unlike

the instant

defining

"public servant"

under Maine

question resolved

-2828

by the

Fifth

Circuit was

whether the

tribal chairman was a

Louisiana's

Commercial

attention

to

tribal chairman

Bribery

Tonry because
_____

was not

the

"private fiduciary" under

Statute.

court

Defendants call

indicated that

a Louisiana public

official within

the meaning of another statute targeting public bribery.

______

in

that case, the government conceded

the

Yet

that issue, given the

particular statutory

scheme.

criminal code defines "public

functional measure,
__________

Here, in contrast,

servant" quite broadly using a

which is notably absent

bribery law referred to in Tonry.

_____

criminal laws operate against

461 A.2d at 489

from the public

More importantly, Maine's

the backdrop of the Settlement

Act which ratified the Maine Implementing Act.

Nation,
______

the Maine

("It was generally

See Penobscot
___ _________

agreed that the

acts set up a relationship between the tribes, the state, and

the

federal

Indians

in

government different

other

governments.").

burdens on

states

to

from the

the

Defendants cannot expect

state

relationship of

and

federal

the jurisdictional

the Tribe resulting from these acts to "disappear

merely because they have become inconvenient."

Passamaquoddy

_____________

Tribe, 75 F.3d at 794.16

_____

____________________

16.

We similarly dismiss

Cook's assertion that the bribery

of Moore to facilitate smuggling operations from

Maine and into Canada is an internal tribal matter
from

federal

and

statutory support

state

interference.

Cook

New York to
protected
offers

no

for interpreting the relevant provision of

the Maine Implementing Act this broadly, and indeed, the case
law

is

to

("[I]nternal

the

contrary.

tribal

respective tribe or

See
___

matters,

30

M.R.S.A.

including

nation, the right

-2929

membership

6206(1)
in the

to reside within

the

Defendants

also

bribery violation on the

challenge

the

predicate

state

ground that Moore's official duties

excluded enforcing federal or Canadian law and thus could not

be influenced.

As noted, the statute prohibiting bribery

in

official matters punishes one who "promises, offers, or gives

pecuniary benefit

other's

action,
______

with the intention of influencing the

___________________________________

decision,
________

discretion as a public servant."

_______________________________

(emphasis

supplied).

presented that,

The jury

as police

or

other exercise of
___________________

17-A M.R.S.A.

could find on

chief, Moore was

602(1)(A)

the evidence

responsible for

general

surveillance of the reservation, and that defendants

selected

him, in

other officers

part, with

on the

smuggling activity.

Cf.
___

A. 427 (1930) (defendant

the intention

that he

divert

reservation from patrolling

areas of

State v. Beattie, 129 Me.

_____
_______

229, 151

charged with bribing county sheriff

to refrain from seizing liquor and arresting person making an

unlawful sale).

referred

Moore testified that he

smuggling activity to the local district attorney's

office and pursued

also

normally would have

testified

to

the matter

having

further if so

mutually

directed.

beneficial

He

working

____________________

respective

Indian

government, tribal
settlement fund

territories, tribal
elections and

organization, tribal

the use or

disposition of

income shall not be subject to regulation by

the State."); Penobscot Nation, 461 A.2d at 490 (holding that

________________
operation of beano
for

"the term

listed

games is not

embraces

in the statute

only

an internal tribal
those matters

and other matters

matter,

illustratively

like them," having

historical cultural importance).

-3030

relationship

with

Canadian

exchanging information.

did not

authorities

which

It may be conceded that

formally include enforcing federal

included

his duties

or Canadian law.

But an

honest municipal police officer would

keep his eyes

circumstances,

open for

even

and report federal

foreign criminal

be expected to

and, in

present

violations; receiving

something of value to turn a deliberate blind eye would limit

his

discretion in

his

official capacity

as tribal

police

chief.

Defendants' related contention that

Moore simply because

status as police chief

they recruited

of his navigational skills and

is undermined by substantial evidence

showing that they were aware of Moore's status and

with

law

onward.

foundation

enforcement

activities

We conclude that

for

the

not his

Travel

from

bribery was a

Act

the

first

concerned

meeting

legally sufficient

violations, and

therefore

affirm those convictions.

C.
C.

Wire
Wire

Fraud:
Fraud:

Scheme
Scheme

to
to

Defraud
Defraud

of
of

Honest
Honest

Services
Services

A third substantive offense, related to the bribing

of

the police chief, was that defendants devised a scheme to

defraud

the

residents of

Pleasant Point of

and

the honest services of

knowingly caused

commerce in

the Passamaquoddy

the

furtherance of

wires to

be

the scheme,

-3131

Reservation at

their police chief

used in

interstate

in violation of

18

U.S.C.

1343

and

without development,

issued a judgment

to tribal

are,

to

that

Defendant

the district

The government

event, subordinate

neither side spells out the

be principally

Lazore

court

of acquittal on these

sovereignty.

in any

While

1346.17

asserts,

should

have

counts in deference

responds that tribes

to the

federal government.

dispute, we understand it

jurisdictional one,

namely, that

the

federal government lacks authority to prosecute defendants on

matter involving internal

relations of

the Passamaquoddy

Tribe.

The

tribes

Supreme

are "'unique

sovereignty over

"[t]heir

incorporation within

that while

exercised."

U.S. 313, 323 (1978)

members and

of

their territory,'"

the territory

of the

United

necessarily

of the sovereignty which they

United States v.
_____________

Wheeler, 435
_______

(quoting United States v. Mazurie,

_____________
_______

U.S. 544, 557 (1975)).

to self-government,

Indian

possessing attributes

acceptance of its protection,

them of some aspects

have previously

stated

aggregations

both their

States, and their

divested

Court has

419

The tribes generally retain the right

id. at 322, but

___

are nonetheless subject

to federal criminal jurisdiction of both a specified and more

general nature.

See generally United

States v. Markiewicz,

_____________ ______________

__________

____________________

17.

Our

reversal of the convictions

1343, supra, does

_____
based

upon

the

another

of the

U.S.C.

1346.

not resolve the

distinct

challenge here, which

theory of

intangible right

for violating section

to

scheming

to

is

"deprive

honest services."

18

-3232

978

F.2d 786,

797-802

(2d Cir.

1992) (discussing

federal

criminal

jurisdiction over offenses

committed by or against

an Indian or on Indian territory, as well as over "peculiarly

Federal" offenses), cert. denied, 506 U.S. 1086 (1993).

____________

The statutory violations charged under 18 U.S.C.

1343

and 1346

rather

at

are

not specific

to

are of general applicability.

330 n.30

("Federal jurisdiction

Native Americans,

but

Cf. Wheeler, 435 U.S.

___ _______

also extends

to .

. .

crimes over which there is federal jurisdiction regardless of

whether an Indian is

involved, such as assaulting

officer,

111

may

18 U.S.C.

involve

"an

(1976 ed.).").

independent

federal

a federal

The latter crimes

interest

to

be

protected," id. at 331 n.32, though it is unclear that one is

___

required.

Compare
_______

Markiewicz, 978 F.2d at

__________

800, with United

____ ______

States v. Begley, 42 F.3d 486, 500 (9th Cir. 1994)

______
______

American

general

may be charged under

applicability

interest, if

even

(a Native

a federal criminal statute of

absent

peculiarly

federal

charge is unaffected by federal enclave law and

Native Americans

have not

been excluded from

the statute's

application), cert. denied, 116 S. Ct. 93 (1995).

____________

appears to belong

to this category of

apply

Native Americans;

equally to

federal interest

general offenses that

even if

is required to support

the statute, the interest is

interstate or foreign

Wire fraud

an independent

this application of

to prevent use of the

wires in

commerce in furtherance of a scheme to

-3333

defraud.

Cf. H.R.Rep. No.

___

(1976), reprinted in 1976

____________

94-1038, 94th Cong.,

2d Sess. 3

U.S.C.C.A.N. 1125, 1127 (noting in

legislative history of the Indian Major Crimes Act [18 U.S.C.

1153],

specified

which

prescribes

federal

offenses, that federal

jurisdiction

over

13

criminal jurisdiction also

extends to "crimes that are peculiarly Federal. . . . such as

assaulting a federal officer

. . . or defrauding

States"); see also United States

________ _____________

1331 (7th Cir. 1993)

destroys

by fire

v. Funmaker, 10 F.3d
________

(18 U.S.C.

property used

the United

844(i), punishing

in or

1327,

one who

affecting interstate

commerce, extends to a Native American who set fire to tribe-

owned gambling hall); United States

_____________

v. Finn, No. CRIM. 5-95____

12(01), -12(02), -12(03), 1995 WL 783305 at *16-*22 (D. Minn.

Oct.

12,

1995)

jurisdiction

an

(denying

motion to

indictment

charging

dismiss

for

officers

lack

of

of

tribal

corporation with mail fraud in violation of 18 U.S.C.

1341

and 1346 and other offenses).

As

discussed

earlier, the

United

States has

an

interest

in

commerce to

preventing

further a

discern, how

this

wires

in

interstate

including one

Defendant has not shown, and

interfere

protected by statute

the

to

intangible right to honest services"

the application

case would

of

scheme to defraud,

"deprive another of the

under section 1346.

use

of sections

with any

or treaty, or

-3434

we do not

1343 and

1346 in

Native American

right

right integral to

self-

government.18

decision-making

Cf.
___

Funmaker,
________

power of

10

F.3d

Indian tribes

at

ends .

1332

("The

. .

at the

point when those decisions would violate federal law designed

to

flow

safeguard important

of

interstate

federal interests

commerce.").

The

such as

the free

convictions

for

violations of section 1346, in conjunction with section 1343,

are affirmed.

D. Jury Instruction on Good Faith Defense

D. Jury Instruction on Good Faith Defense

Defendants challenge the

district court's

refusal

to give a proposed instruction to acquit on wire fraud if the

jury found "that the

defendant had a good faith

belief that

his status as a

Native American entitled him to

the United States-Canadian border

taxes

on

the

instruction

goods

he

was

freely pass

without paying any form of

carrying."

The

proposed

would not have required the jury to find, as the

district court

instructed

instead, that

their

belief was "objectively reasonable."

We need

challenge

because the

to the

convictions

jury instruction,

based

on

the

scheme

to

good

faith

not decide the

defraud

wire fraud

Canadian

authorities of taxes and duties have been reversed.

____________________

18.

While

enforce
offenses

Congress has

certain

federal

in the State

removed

federal

statutes involving

of Maine, wire fraud

jurisdiction to
Indian-related
laws are not so

included.

See 25 U.S.C.
___

1725(c) (removing federal criminal

jurisdiction over sections 1152 through 1156, 1160, 1161, and

1165 of Title 18).

-3535

True, charges

under a second theory

of wire fraud

(depriving citizens on the reservation of the honest services

of

their police chief) have

give the proposed

been affirmed.

instruction relating to

If refusing to

aboriginal rights

were error, it

defendants'

might have infected the

intent

on

these

jury's assessment of

additional

counts

as

well.

However, defendants' argument is grounded in the first theory

of wire fraud alone;

case is

tax

the extent that

in

"objectively

it is

analogous to

which an

certain federal

instruction

reasonable"

is

that

good

inappropriate.

United States, 498 U.S. 192, 203 (1991).

______________

of

the

this

about having the specific intent to violate Canadian

laws,

cases,

they say that to

tax-related

contention

charges,

is not even arguably

district court went beyond

faith must

See
___

be

Cheek v.
_____

Given our reversal

defendants'

tenable.

tax offense

initially

In

weak

any case, the

the legal minimums in instructing

the jury that it could consider good faith as a defense.

Cf.
___

Dockray,
_______

943

F.2d

instructs the jury

essentially

the

at

155

on the

opposite

("[W]here

the

element of intent

of

good

faith

court

properly

to defraud

--

--

separate

instruction on good faith is not required.").

E. Sentencing of Boots
E. Sentencing of Boots

Boots

and

challenges his sentence,

which, like Cook's

Lazore's, was at the low end of the applicable guideline

sentencing range:

18 months imprisonment, to be followed by

-3636

two

years

of

assessments

supervised

were

release.19

imposed.

Boots

Mandatory

raises four

special

sentencing

issues.

1. Downward Departure
1. Downward Departure

Boots contends

in

the

first that the district court erred

refusing to grant a downward

departure.

general rule that jurisdiction

from a district court's

downward.

He acknowledges

does not lie for appeals

discretionary decision not to depart

See United States v. Tardiff, 969 F.2d 1283, 1290

___ _____________
_______

(1st

Cir.

exception

1992).

for

However,

a refusal

"misapprehension of

to

he

seeks

depart

to

based

fit within

upon a

the

court's

the rules governing departures."

United
______

States v. Gifford, 17 F.3d 462, 473 (1st Cir. 1994).

______
_______

The exception is a narrow one, and is not met here.

review

of

the

sentencing transcript

district court judge

law,

believed

declined

to do

presented.

involve

he

so

was well aware

had

authority to

after carefully

reveals

of the applicable

depart

unusual

____________________

downward,

weighing the

His discretionary judgment that

such

that

circumstances to

the

case

and

arguments

the case did not

justify

taking

it

19.

The guideline range was determined as follows:

offense
3D1.2(d),

level

of

pursuant

and 3D1.3(b);

minimal planning
offense

2F1.1(a),

increase for

pursuant to

a loss

2F1.1(b)(1)(H);

for an offense involving

pursuant to

level of 15.

U.S.S.G.

a seven-level

between $120,000 and $200,000

and a two-level increase

to

a base

2F1.1(b)(2)(A), for

more than
a total

With a criminal history category of I,

the applicable range was 18 to 24 months.

-3737

"outside

the

Guidelines'

'heartland,'"

United States
______________

v.

Rivera, 994
______

legal

F.2d 942, 949 (1st Cir. 1993), was not skewed by

errors such

as Gifford
_______

describes.

It is

therefore

court

erred

unreviewable.

2. Acceptance of Responsibility
2. Acceptance of Responsibility

Boots

claims

that

the district

in

refusing to grant him a two-point reduction for acceptance of

responsibility

for

3E1.1(a).

says that

factual

He

basis

jurisdictional

for

his

the

bases,

offenses

at trial

pursuant

he did

charges, but

and

should

to

U.S.S.G.

not contest

challenged

not

be

the

only

the

punished

for

exercising his constitutional right to a trial.

We

review for

clear

error

the district

court's

decision that Boots did not "clearly demonstrate[] acceptance

of responsibility" for his offense.

also United States

____ _____________

1995).

v. Lombard,
_______

The district

part because

72 F.3d 170,

187 (1st

if defendant had

concerned with jurisdictional issues

plea

3E1.1(a); see
___

court declined to grant a

it believed that

American status,

U.S.S.G.

reduction in

been solely

relating to his

he could have entered

Cir.

Native

a conditional guilty

and preserved the issue for appeal rather than going to

trial.

The

court also considered

defended against

that the

the bribery

the fact that

aspect of the

payments they offered

Moore were

rather were salary for a business partner.

-3838

defendants

case, insisting

not bribery

but

A district court's determination of

whether such a

reduction is warranted deserves "great deference."

3E1.1 comment. (n.5).

Cf. United States v.

___ _____________

like any

not

We

see no abuse of discretion here.

Crass, 50 F.3d 81, 84

_____

other essential element

be contested

by

U.S.S.G.

(1995) ("intent,
______

of the crime

the defendant

charged, may

without jeopardizing

downward

adjustment

for

'acceptance of

responsibility'");

United States v. Springs, 17 F.3d 192, 196 (7th Cir.) (noting

_____________
_______

that defendant who entered

to retain the

right to

confessions, and

he

conditional guilty plea "was able

challenge the

still

acceptance-of-responsibility

voluntariness of

received

the

maximum

his

possible

reduction"), cert. denied, 115

_____________

S. Ct. 375 (1994).

3. More Than Minimal Planning

3. More Than Minimal Planning

Boots

pursuant to

challenges

U.S.S.G.

the

two-level increase

2F1.1(b)(2)

more than minimal planning.

for offenses

imposed

involving

The Guidelines state that

increase applies where repeated

period of time provided they were

this

acts are carried out over

not "purely opportune," as

well

as where steps

U.S.S.G.

(n.2).

court

1B1.1

are taken to conceal

comment.

The sentencing

judge

imposed

the offense.

(n.1(f)), 2F1.1(b)(2)

period.

comment.

transcript reflects that the district

this

increase

after considering

evidence of multiple acts taken by defendants over

month

See
___

Among the

acts specifically

-3939

noted

the

a several

was the

bribery of Police Chief Moore, a

defendants

directly

While

district court

the

remand

concealed activity in which

participated

may

in

the

reconsider

spring of

1992.

this issue

upon

for resentencing in light of our reversal of the wire

fraud and conspiracy

convictions, it was not

clear error to

impose the increase.

4. Amount of Loss
4. Amount of Loss

Boots claims that

the

district

court's

(between $120,000

level

increase

insufficient evidence

calculation

of the

amount

and $200,000), which resulted

to defendants'

determined based on

sentences.

testimony at trial and

supported

of

loss

in a seven-

The range

was

sentencing as to

the

quantity

of tobacco

corresponding duties

wire

fraud

vacating

transported

and taxes

count

involving

the

conspiracy

of

into

owed.

Canada and

Our reversal

tobacco

smuggling,

count, require

the

of the

and

our

remand

for

resentencing, at which time the district court may reconsider

the entire

question

instant issue.

We

of

loss

see no

calculations,

need to

including

deal further with

the

this

matter now.

We have considered

find

them

violations

to

be

of 18

deprive residents

and 1952 (Travel

without

U.S.C.

defendants' other arguments and

merit.

1346

The

(wire

of honest services of

Act) are

affirmed.
________

The

convictions

for

fraud intended

to

their police chief)

violations of

18

-4040

U.S.C.

taxes)

1343

(wire fraud

are reversed.
________

relative to

The violation

Canadian duties

of

18 U.S.C.

(conspiracy) is vacated and remanded for further

_______
________

not

inconsistent

with this

opinion.

We

also

and

371

proceedings

vacate the

sentences

of all

defendants

consistent with this opinion.

So ordered.
__ ________

and

remand

for

resentencing

-4141