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United States v. Markiewicz
Citation: 978 F.3d 786Docket: Nos. 798, 709, 809, 704, 568 and 710, Dockets 91-1077 to 91-1081 and 91-1135
Court: Court of Appeals for the Second Circuit; November 2, 1992; Federal Appellate Court
The six defendants, including five Oneida Indians and one Mohawk Indian, appeal their convictions from a jury trial in the U.S. District Court for the Northern District of New York, presided over by Judge Howard G. Munson. The primary contention is whether the federal court had jurisdiction over crimes committed by the Indian defendants on a 32-acre area of the Oneida Nation, referred to as 'The Territory.' The defendants argue that their conduct, occurring on The Territory, falls under the Oneida Nation's sovereignty rather than federal jurisdiction. They also question elements of the jury charge and the sufficiency of evidence. The court determines that federal jurisdiction was properly exercised but reverses convictions on counts I and II due to jury charge errors, remanding these counts for further proceedings. Linda Marks's perjury conviction on count XII is also reversed and dismissed. The remaining convictions are affirmed. The Oneida Nation operates under a traditional form of tribal government recognized by the Bureau of Indian Affairs (BIA) for federal funding and communication purposes. This government structure is overseen by a nine-member council of chiefs and includes various decision-making bodies that function through consensus. Although the territorial council had been inactive, it was revived in January 1988 by certain Oneidas asserting its authority on The Territory. The Oneida Nation's bingo hall, established in 1985 with initial investments from several members, including Donald Marks, served as a central activity hub. Raymond Halbritter was the first general manager until February 1987, after which John Dyer took over but resigned later that year. A three-person business committee, representing the Oneida Nation's clans (wolf, turtle, and bear), then managed the bingo hall, leading to controversies regarding its authority and operations. Discontent arose among members, particularly with the committee's control over bingo revenues and their management practices, including paying salaries of tribal employees from these funds. Notable incidents included William Beglen's resignation and Otatdodah Homer’s suspension after challenging the committee's record-keeping location. Tensions escalated, culminating in the bingo hall's closure on December 9, 1987, following an attempted intervention by members regarding bank deposits. In January 1988, amid ongoing discord, Halbritter filed a civil complaint in federal court to address the unrest and protect tribal businesses. The case included defendants like Donald and Linda Marks, with Judge McAvoy issuing a temporary restraining order and a preliminary injunction shortly thereafter. Linda Marks attempted to revive the tribe’s dormant territorial council, claiming authority to allocate bingo hall revenues. On January 12, 1988, following a temporary restraining order, she and several Oneidas gathered to divide over $60,000 in bingo revenues. Notable distributions included $1,050 to Otatdodah Homer for recreation committee work, $28,000 to Donald Marks as payment for his investment and back pay, and $1,065 to William Beglen for back pay as a computer systems manager. Although Linda Marks did not receive funds, she was indicted alongside the others for conspiring to receive stolen tribal funds under 18 U.S.C. 1163. Testimony revealed multiple confrontations among feuding Oneida factions in January 1988, involving defendants including Beglen, Brenda Kane, John Kane, Donald Marks, and Linda Marks. Incidents included a January 4 visit to business committee member Charles Fougnier's home to demand checkbooks, vandalism of a gas station on January 5, breaking into the bingo hall and assaulting individuals on January 9, and confronting reporters on January 28. These events contributed to counts III and IV of the indictment for conspiracy to violate the federal anti-riot act, 18 U.S.C. 2101. A significant incident was the February 21, 1988, burning of the bingo hall, for which Donald Marks, Linda Marks, John Kane, and William Beglen were indicted for malicious damage to a building affecting interstate commerce under 18 U.S.C. 844(i). On June 15, 1989, a grand jury issued a 15-count superseding indictment against 13 defendants, of which seven were tried: Beglen, Homer, Brenda Kane, John Kane, Donald Marks, Linda Marks, and Neil Thomas. Appeals are ongoing for six of these defendants, while others fled or pled guilty. The district court dismissed two counts pretrial, leaving three conspiracies and ten substantive crimes, categorized into theft of tribal funds, riot, destruction of the bingo hall, and offenses during pending civil proceedings. Count I charged conspiracy to receive tribal funds, while Count II charged theft from the tribal organization against several defendants. Count III charged Beglen, Brenda Kane, John Kane, Donald Marks, and Linda Marks with conspiracy to incite a riot through interstate commerce under 18 U.S.C. §§ 371, 2101. Count IV charged them with the substantive offense of violating the anti-riot act. Count VII involved a conspiracy to maliciously damage a building used in interstate commerce via fire or explosion, charging Beglen, John Kane, Donald Marks, and Linda Marks under 18 U.S.C. § 844(i). Subsequent counts related to retaliation against a witness, with Count VIII charging John Kane and Donald Marks for assaulting Barry Halbritter in retaliation for the Halbritters' involvement in a civil suit against the Markses. Count IX charged Donald Marks with criminal contempt for violating a court injunction by assaulting Barry Halbritter. Counts X through XV involved perjury charges against Beglen, John Kane, Donald Marks, and Linda Marks for false testimony during depositions related to the civil suit under 18 U.S.C. § 1621(1). The trial commenced on March 5, 1990, where the government presented 57 witnesses, focusing on events from November 1987 to February 1988, and evidence of subsequent offenses linked to the civil suit. After six days of deliberation, the jury convicted Beglen, Homer, Donald Marks, and Linda Marks on conspiracy to steal tribal funds (Counts I and II). On Count III, the jury found Beglen, Brenda Kane, John Kane, Donald Marks, and Linda Marks guilty of conspiracy to violate the anti-riot act; however, Linda Marks was acquitted on Count IV, which charged violating the anti-riot act. Count VII resulted in convictions for Beglen, John Kane, Donald Marks, and Linda Marks for conspiracy to damage a building. Counts VIII and IX led to convictions for John Kane and Donald Marks for witness tampering and Donald Marks for criminal contempt, respectively. For perjury (Counts X through XV), the jury convicted Beglen on one count, Donald Marks on two, and Linda Marks on one count; John Kane and Linda Marks were acquitted on one perjury count each. Sentencing occurred on January 25, 1991, where the district court applied sentencing guidelines to all convictions except for the anti-riot counts. Sentences included imprisonment and supervised release for various defendants, along with restitution and mandatory special assessments. On appeal, the defendants raised multiple challenges, including jurisdictional claims regarding internal tribal disputes, jury instruction errors related to theft from the tribal organization, and insufficiency of evidence for their convictions. Each of these claims will be addressed in turn. Defendants contended that federal criminal jurisdiction was inapplicable to offenses between Indians on Indian land, arguing Indian tribes maintain exclusive jurisdiction unless Congress specifies otherwise. The district court dismissed this argument, asserting that federal criminal laws apply even if both the defendant and victim are Native Americans and the crime occurred on a reservation. The appellate court agreed with the district court's jurisdictional ruling but based its reasoning on a distinct interpretation of the relevant statutory framework. The discussion highlights federal enclave laws, which allow federal courts to prosecute certain crimes within the United States' special maritime and territorial jurisdiction, including crimes like arson, assault, and murder. Additionally, the assimilative crimes act enables federal courts to adopt state criminal laws in the absence of federal statutes for offenses committed on federal enclaves. However, jurisdictional complexities arise on Indian territories, where both federal and tribal interests coexist. Although federal enclave laws apply to Indian territories under 18 U.S.C. 1152, they do so with limitations. This statute specifies that federal laws do not cover offenses committed by one Indian against another within Indian country, nor does it apply to offenses where tribal law has already imposed punishment or where treaties grant exclusive jurisdiction to tribes. In Ex parte Crow Dog, the Supreme Court ruled that the federal government lacked jurisdiction to prosecute an Indian for murdering another tribal member on Indian territory, citing a statute that excluded such crimes from federal jurisdiction. The Court emphasized the congressional policy allowing tribes to regulate their own internal affairs and maintain order through their own laws and customs. In response to this decision, Congress enacted the Indian Major Crimes Act in 1885, now codified as 18 U.S.C. § 1153, which grants federal jurisdiction over specific "major" offenses committed by Indians against other Indians on tribal land. Initially listing seven offenses, the Act has been expanded to include thirteen, explicitly stating that Indians committing these crimes are subject to the same penalties as non-Indians. The Supreme Court case United States v. Quiver clarified that since adultery was not enumerated in the Major Crimes Act, federal jurisdiction did not apply, reinforcing that tribal customs govern Indian relations unless Congress explicitly asserts jurisdiction. The district court in the current case, however, dismissed Quiver's precedent, asserting that all federal criminal laws apply universally, including on Indian territories. This interpretation aligns with the Eighth Circuit's ruling in United States v. Blue, where federal jurisdiction was upheld for narcotics offenses committed by Indians on tribal land. In Stone v. United States, the Eighth Circuit affirmed that federal jurisdiction exists when an Indian defendant commits a crime against a federal officer on Indian territory, citing laws that criminalize certain actions regardless of location. Similarly, in United States v. McGrady, the court held that jurisdiction is present when a criminal statute applies universally. The Ninth Circuit also supports the idea that federal laws apply directly to Indian territories, as demonstrated in United States v. Young, where various crimes involving firearms led to federal jurisdiction. Additionally, in Walks on Top v. United States, the court recognized jurisdiction over crimes against federal officers on Indian land under general U.S. law. However, United States v. Jackson established that, generally, crimes committed by enrolled Indians against one another within Indian territory fall under tribal court jurisdiction, barring those listed in section 1153. A district court affirmed that federal statutes apply automatically to Indian territories in United States v. Burns. Contrarily, the Fourth Circuit's decision in United States v. Welch reversed a conviction for an Indian who raped another Indian on Indian territory, emphasizing that only crimes enumerated in the Major Crimes Act can be prosecuted federally. This perspective aligns with legislative history indicating that federal jurisdiction over Indian-against-Indian crimes on Indian land is limited to specified offenses, with other crimes under tribal jurisdiction. Two exceptions to this jurisdictional framework exist: some federal laws grant states complete or concurrent jurisdiction over particular Indian territories, and federal jurisdiction is applicable for crimes that are inherently federal, such as assaulting federal officers or defrauding the U.S. Federal jurisdiction exists over certain crimes committed by Indian defendants against Indian victims on Indian territory, particularly when the crime involves a federal interest. The Seventh Circuit recognized this principle in United States v. Smith, where an assault on a BIA officer was deemed a 'peculiarly Federal' offense, leading to federal jurisdiction. The Supreme Court in United States v. Wheeler also acknowledged that federal jurisdiction applies to crimes regardless of the involvement of an Indian, particularly when protecting federal interests. The passage clarifies that the district court's broad application of federal criminal laws to Indian-on-Indian offenses may not be universally valid, as some crimes may not trigger jurisdiction under the Quiver rule. Specifically, the court identified that certain offenses did not qualify as crimes against another Indian or occurred outside Indian country, thus exempting those defendants from Quiver’s limitations. Additionally, Congress has explicitly granted federal jurisdiction over specific crimes, such as theft of tribal funds under 18 U.S.C. § 1163, which includes provisions for prosecuting Indians who embezzle or steal from Indian tribal organizations. This statute underscores Congress's intent to confer jurisdiction over such offenses, as the perpetrators are likely to be Indians misappropriating funds entrusted to them. Congress, through the 1956 statute, aimed to establish federal jurisdiction over certain Indian-against-Indian crimes, specifically targeting the protection of tribal organizations from corrupt officials misusing tribal funds. Legislative history, including a letter from the Assistant Secretary of the Interior, emphasizes this objective. The enactment of this law introduced an exception to the general prohibition of federal jurisdiction in such cases. In the context of federal arson laws, several defendants were convicted under 18 U.S.C. 844(i) for conspiring to destroy a bingo hall on Oneida territory. This statute criminalizes malicious damage or destruction of property used in interstate commerce. Although initially perceived as anti-bombing legislation, it was amended in 1982 to include arson, thus granting federal jurisdiction over such crimes as outlined in 18 U.S.C. 1153. Consequently, the district court's assertion of jurisdiction in this case was deemed appropriate. In a separate incident, John Kane and Donald Marks were convicted for witness tampering under 18 U.S.C. 1513, following an assault on a witness outside an Indian territory. The defendants argued for jurisdiction based on Indian sovereignty, but since the crime occurred outside Indian country, their jurisdictional claim was dismissed, aligning with precedents that restrict jurisdictional issues to crimes committed on tribal land. Donald Marks was charged with criminal contempt under 18 U.S.C. § 402 for assaulting Barry Halbritter, which violated a preliminary injunction issued by Judge McAvoy. The jurisdictional challenge related to this charge failed because the conduct occurred outside Indian territory, paralleling the failure of a witness tampering challenge. Four appellants faced perjury charges under 18 U.S.C. § 1621(1) for false testimony in a civil case involving the Nation. The victims were deemed to be the federal court system rather than individuals, affirming that the federal perjury statute, which aims to protect the integrity of judicial processes, was applicable and that the district court had proper jurisdiction. Regarding the charges under the federal Anti-Riot Act (18 U.S.C. § 2101), the district court also had jurisdiction. Evidence showed that Marks made a phone call to Canada soliciting aid from Canadian Oneidas for a territorial conflict, indicating that part of the crime took place outside Indian territory, which is necessary for federal jurisdiction under the statute. Additionally, the defendants presented a jurisdictional claim based on the Treaty of Canandaigua, arguing that it precludes federal criminal jurisdiction over the offenses as they are part of an intratribal dispute. They cited the treaty's provision for the Oneidas' free use and enjoyment of their lands, emphasizing that any intention to modify such treaties should not be presumed lightly by Congress. However, this argument was found to be unpersuasive. The Supreme Court has previously ruled against the notion that Congress must specifically list all potentially conflicting treaty rights when enacting jurisdictional laws applicable to Indian country. In the case presented, appellant John Kane argues that Congress granted New York exclusive jurisdiction over crimes involving Indians on reservations, but this claim is dismissed as 25 U.S.C. § 232 provides only concurrent jurisdiction to New York, allowing for federal jurisdiction as well. The defendants, Beglen, Homer, Donald Marks, and Linda Marks, contest the district court's jury instructions regarding their convictions for conspiring to receive and receiving stolen tribal funds under 18 U.S.C. § 1163. Since they did not raise objections during the trial, the review is limited to identifying plain errors. The court outlined the necessary elements for proving violations of § 1163, but the defendants identified three errors in the jury instructions: 1) the failure to require proof that they knew the funds were stolen, 2) inadequate definition of an Indian tribal organization, and 3) not requiring proof that they knew the funds belonged to such an organization. The court acknowledged that the third point constituted plain error and suggested that the first two issues should be addressed for future jury instructions in case of a retrial, recognizing a significant omission regarding the requirement of knowledge about the funds being stolen. A more explicit jury instruction was deemed preferable, but it was concluded that the omission did not amount to plain error. The jury was adequately instructed regarding the defendants' intent to convert bingo hall funds, which addressed the knowledge required about the funds' stolen nature. The court found no error in the district court’s definition of an Indian tribal organization, as the defendants did not provide an alternative definition and the statutory definition offered sufficient guidance. Defendants Beglen and Homer challenged the district court's failure to include knowledge of the source of the stolen funds as an essential element of the offense, which the court agreed constituted plain error. The omission of an essential element from jury instructions can be reviewed even without an objection at trial. If the evidence is sufficient to prove the missing element beyond a reasonable doubt, the conviction should be vacated and remanded for a new trial. In this case, the instructions for counts I and II omitted the knowledge element, leading to the reversal of the defendants' convictions, but since the evidence was sufficient, a new trial was ordered. The defendants were charged under 18 U.S.C. § 1163 for the receipt of stolen tribal funds, specifically addressing actions involving embezzlement, theft, or conversion of property belonging to an Indian tribal organization. The court emphasized the necessity of knowledge regarding the source of the stolen funds as a critical element of the offense. Whoever knowingly receives, conceals, or retains property that has been embezzled, stolen, converted, or misapplied, with the intent to convert it for personal use, must be aware that the property belongs to an Indian tribal organization or is held in trust by an officer or agent of such organization. The term "so" is crucial as it indicates that the government must prove the defendants had knowledge that the property they intended to receive had been specifically taken from an Indian tribal organization. The government asserts that the reference to tribal organizations merely establishes federal jurisdiction under 18 U.S.C. § 641, which criminalizes theft of government property without needing to show the defendant's knowledge of the property's governmental status. While § 641 requires only that the defendant knew the property was stolen, § 1163 imposes an additional requirement of knowledge regarding the specific source of the stolen property. Despite similarities between the two statutes, the distinct language and requirements of § 1163 necessitate a separate interpretation that cannot simply adopt the analysis of § 641, despite legislative history suggesting that § 1163 was modeled after it. Congress's addition of the word "so" in the second paragraph of statute 1163 indicates an intent to include an additional element beyond influences from statute 641. The district court erred by instructing the jury that it did not need to determine, beyond a reasonable doubt, whether the defendants knew the funds were from an Indian tribal organization, which constitutes a plain error requiring the reversal of their convictions on counts I and II. Despite this reversal, the analysis continues to assess the sufficiency of evidence regarding the defendants' knowledge of the funds' origins. Evidence presented at trial supported the jury's conclusion that Linda Marks was aware the funds were taken from an Indian tribal organization, based on a receipt signed by her and Geraldine Feeley, the payroll clerk. Feeley testified that Marks indicated she would deposit the funds into the territorial council's account, suggesting knowledge of misappropriation. Marks, along with Donald Marks, argued that the bingo hall was not an Indian tribal organization; however, testimony confirmed that the bingo hall operated under the authority of the Oneida Nation, thus validating the jury's conclusion that the funds received were from a tribal organization. The other defendants, William Beglen, Otatdodah Homer, and Donald Marks, contended they believed the territorial council distributing funds was a legitimate entity. This position implicitly acknowledges the missed jury instruction regarding knowledge of the funds' origin. Their sufficiency argument hinges on claiming a legal entitlement to the bingo hall funds received. Homer asserts she believed the $1,050 she received on January 12 was back pay owed to her for her work on the Oneida cultural and recreation committee following her suspension in mid-November. Despite her claims, Geraldine Feeley, the Nation’s bookkeeper, provided a receipt indicating that Homer had already received back pay on January 8, 1992, prior to the distribution of funds on January 12. Testimonies from other committee members, Linda Hill and Irene Thomas, confirmed they also received their payments on January 8, allowing the jury to reasonably conclude that Homer was aware she had no legal claim to the funds on January 12. Additionally, Homer challenges the sufficiency of evidence regarding her role in a conspiracy for the stolen tribal funds, arguing she lacked full knowledge of the conspiracy. However, it is established that a conspirator does not need to know every detail, but must have some knowledge and participation. Evidence indicated Homer attended the bingo hall meeting and accepted $1,050 she was not entitled to, establishing her as a co-conspirator. Beglen contends he was entitled to the money he received, claiming it was a pay raise based on a favorable evaluation from the business committee before he resigned. However, a jury could find this assertion self-serving and unconvincing, especially since Beglen questioned the authority of the business committee and there was no evidence that such an evaluation warranted the funds. Despite his claims, Beglen attended the meeting where the tribal funds were distributed, and Feeley’s testimony about a prior meeting with Beglen discussing plans for the bingo hall funds further supported findings of his conspiracy involvement. Donald Marks asserted a legal right to funds, but evidence indicated he was aware the funds were taken illegally. Linda Hill testified that Marks stated during a January 12 meeting that the money was being divided to prevent U.S. marshals from seizing the bingo hall's assets. This suggested to the jury that Marks recognized the illegitimacy of the fund division. Marks claimed that he received $28,000, of which $18,000 was for back pay and $10,000 for his investment. However, Marilyn John testified that Marks was not entitled to his investment return until 1990, implying he knowingly received the $10,000 at the 1988 meeting without legal entitlement. Consequently, the jury had enough evidence to conclude that Marks, along with Homer and Beglen, unlawfully received money from a tribal organization. The convictions on counts I and II were reversed due to an essential element omission in jury instructions, but the case was remanded for a new trial based on sufficient evidence for conviction under correct instructions. In the perjury section, William Beglen, Donald Marks, and Linda Marks contested their convictions based on unsigned depositions from a civil suit, arguing that the government improperly used these depositions as a basis for the indictments. They contended that the evidence did not support the perjury charges. However, the court found that the depositions, regardless of being unsigned, were valid as they were given under oath and transcribed by court stenographers. Therefore, this established a sufficient foundation for the perjury charges. The defendants also claimed that some questions in their depositions were ambiguous. While the jury usually decides if a witness believed their testimony was false, the court may overturn a perjury verdict if the questioning is deemed fundamentally ambiguous. A question is considered fundamentally ambiguous if it lacks a clear meaning that ordinary individuals could agree upon without prior definition. Evaluating a defendant's challenge to the clarity of a question requires analyzing both the questions and answers in the context of the entire testimony. If a defendant's response is false based on their understanding of the question, their conviction remains valid, even if the answer can be interpreted in multiple ways. In the case of Linda Marks' perjury conviction, the pivotal question concerned whether she received any bingo hall funds in January 1988. Marks initially answered "No" but later exhibited confusion regarding her involvement and the context of the question, considering whether it related to her personal capacity, her role at the smoke shop, or her membership in a territorial council that handled the funds. The government argued the question's clarity was evident, pointing to Marks' acknowledgment of her signature on a document for $60,541.94, despite her later testimony denying receipt of the funds. However, the critical issue is not Marks' contradictory responses throughout her deposition but whether the specific question forming the basis of her perjury charge was ambiguous. The conclusion reached is that it was indeed ambiguous, similar to the precedent set in Lighte, where vague questioning led to a reversal of a perjury conviction. Marks denied receiving money from the bingo hall in January 1988, but her later statement about managing funds in the smoke shop suggests she may have handled the Nation's money in a non-personal capacity. The ambiguity of the initial question prompted her need for clarification, indicating a fundamental lack of specificity, which contributed to the reversal of her conviction on count XII. Beglen and Donald Marks also contested their perjury convictions. Beglen argued that his answers were literally true and should lead to a reversal of his conviction, citing the case of Bronston v. United States, where a defendant's unresponsive but literally true answer was deemed insufficient for perjury. However, Beglen's claim that he could not be at the bingo hall on December 4, 1987, was dismissed. The jury was correctly instructed regarding the Bronston defense, and evidence favored the government's position that Beglen's negative response to whether he took any money from the bingo hall was not literally true. The indictment's specification of the date did not absolve him, as the jury found sufficient grounds for his conviction based on the context of his answers. The indictment incorrectly referenced December 4, while trial testimony clarified the relevant date as December 6, when Beglen and others blocked an employee from leaving the bingo hall with funds. Despite this discrepancy, Beglen's response denied taking any funds from the bingo hall after either date. Contextually, he consistently denied having taken the funds during the disruption, which the jury reasonably interpreted as perjury, given evidence that funds distributed on January 12, 1988, originated from the bingo hall. Donald Marks's challenge regarding the sufficiency of evidence for his perjury conviction was also unsuccessful. He was convicted on two counts: (1) denying receipt of money from the bingo hall beyond interest and wages, and (2) asserting he never attended a meeting regarding the Canadian Oneidas being asked to leave. The government must demonstrate the defendant's knowledge of the falsehood of their statements at the time of making them. The jury found sufficient circumstantial evidence indicating Marks was aware his statements were false, supported by testimonies revealing he received funds and attended relevant meetings where the Canadian Oneidas' presence was discussed. Consequently, Marks's claims regarding the evidence sufficiency for his convictions were dismissed. Other claims regarding evidence sufficiency by the defendants remain unaddressed. In evaluating a sufficiency challenge, evidence is reviewed favorably towards the government, affirming convictions if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In conspiracy cases, the government does not need to prove a formal agreement but must show that the defendants acted together towards a common goal. Essential elements of the conspiracy must be agreed upon by the defendants, and circumstantial evidence can demonstrate their knowledge and participation. Regarding the arson conspiracy convictions involving defendants Beglen, John Kane, Donald Marks, and Linda Marks, the evidence was deemed sufficient to support the jury's findings. John Kane made statements indicating a plan to burn down the bingo hall and participated in a break-in prior to the fire, which could be interpreted as actions supporting the conspiracy. Donald Marks was also present at the bingo hall before the fire, engaging in suspicious activities, and later made comments about the fire's intensity. Collectively, these actions indicated awareness and participation in the conspiracy to commit arson. Marks's activities in the bingo hall before the fire, along with his statements afterward, provided sufficient evidence of his awareness and participation in a plan to burn the hall. Linda Marks's actions also indicated her role as a conspirator; during a bingo meeting, she suggested that Doreen Cornelius need not formally resign since “we’re going to burn everything anyway,” and she warned Scott Jones Helft to stay out of the closed bingo hall the night before the fire. William Beglen's involvement was supported by testimony from his aunt, who recounted that he had mentioned the bingo hall would have been destroyed earlier if not for Ray Halbritter's potential profit from insurance, indicating his knowledge and intent regarding the conspiracy. All defendants, including William Beglen, Brenda Kane, John Kane, Donald Marks, and Linda Marks, challenged the sufficiency of evidence for their convictions of conspiring to violate the Anti-Riot Act and aiding and abetting that violation. Linda Marks, Donald Marks, and Brenda Kane argued for a strictissimi juris standard of review, which applies when group activities involve both legal and illegal purposes and are related to First Amendment rights. This standard necessitates that the court determine if there is direct or circumstantial evidence of each defendant's personal advocacy and participation in the conspiracy's illegal objectives, without attributing co-conspirators' illegal intent to them. The defendants' argument that their actions were political in nature related to Oneida sovereignty was countered by the record, which did not support this characterization, especially in light of the precedent set in United States v. Dellinger, which focused on speech-based prosecutions. Defendants allegedly engaged in a conspiracy to incite a riot, exemplified by their involvement in public disturbances, including a threatening gathering at Charles Fougnier's home, an attack on Halbritter gas station, and a break-in at a bingo hall. The conspiracy aimed to intimidate opponents of the defendants, utilizing illegal means to achieve its ends. The court noted that under the anti-riot act (18 U.S.C. § 2101), the government must prove that defendants used an interstate commerce facility with intent to incite or participate in a riot or commit violence, alongside committing overt acts related to those intents. The statute requires proof of intent at two distinct times: when the interstate facility is used and when overt acts are committed. The court highlighted that while the specifics of the riot may evolve, they must maintain a reasonable similarity to the initial intent. In examining Donald Marks’ actions, the government presented evidence that he made an international call on December 6, 1987, to summon the Canadian Oneidas to The Territory, which led to subsequent disturbances. Although the evidence did not link Marks’ call directly to a specific public disturbance, his later actions indicated an intent to disrupt local life by introducing the Canadians into the ongoing conflict, contrary to suggestions from other Oneidas to resolve issues locally. Sherri Edwards testified that at a December 20, 1987, Nation meeting, Donald Marks defended the Canadian Oneidas' involvement on The Territory, which the jury could interpret as evidence of his intent to incite a public disturbance when he made a related telephone call. Brenda Kane contends that the government must prove that all defendants used a facility of interstate commerce. However, it has been established that the government does not need to demonstrate this element for each defendant in cases where they are charged with aiding and abetting a related offense. In United States v. Sigalow, it was determined that a defendant could be convicted of aiding and abetting a crime involving interstate commerce without needing to show direct assistance in using interstate facilities, provided the overall scheme had significant interstate connections. In this case, Marks's phone call inviting the Canadian Oneidas constituted sufficient evidence of interstate commerce to implicate all defendants. The evidence indicated that Marks intended to promote a riot on The Territory, which could be attributed to the other defendants charged under the anti-riot act. The government successfully demonstrated that each defendant—Beglen, John Kane, Brenda Kane, and Donald Marks—committed an overt act in furtherance of a riot, as defined by the anti-riot act, involving acts or threats of violence by an assemblage of three or more individuals that posed a clear and present danger to property or personal safety. Three specific gatherings of Oneidas within a week were identified as fitting the riot definition: (1) a January 4, 1988, assembly of over 30 Oneidas at Charles Fougnier's home; (2) a January 5, 1988, attack on the Halbritter gas station; and (3) a January 9, 1988, break-in at a bingo hall, during which Clint Hill and Jerome Waterman were assaulted. Although the gathering at Fougnier's home was not included in the indictment, the government was still permitted to present it as evidence of an overt act contributing to the defendants' conspiracy to violate the anti-riot act. Defendants participated in a gathering outside Fougnier's house, demonstrating their aid and abetment of others in violating anti-riot laws. The events involved groups exceeding three individuals, where property damage occurred, and threats were made with the capacity for immediate execution. The riots aimed to intimidate dissenters and disrupt businesses in The Territory. Key individuals, including Beglen, Brenda Kane, John Kane, and Donald Marks, engaged in acts that constituted overt participation in inciting or committing violence related to the riots. During a confrontation at Fougnier’s residence on January 4, 1988, Charles Fougnier identified 30 to 40 Oneidas, including the aforementioned defendants, who gathered on his porch and threatened him regarding financial records. John Kane and Donald Marks issued threats to burn the bingo hall if their demands were unmet, which a jury could interpret as intimidation in a group context. Beglen and Brenda Kane’s presence and actions could also suggest they were aiding in these threats. Additionally, Beglen’s involvement included comments about a BB gun incident and assertions of Oneida sovereignty, indicating active participation rather than passivity. He was also present during a confrontation with a television crew at the bingo hall, further implying his role in the public disturbance. On January 5, 1988, Brenda Kane, Donald Marks, and around 25 Oneidas attacked the gas station owned by Ray Halbritter's family. Testimonies revealed that Marks and Dockstater sought access to restricted areas within the gas station, and Karen Halbritter observed suspicious behavior from individuals exiting the cash hut, reinforcing the notion of their involvement in unlawful activities. Sergeant David Wheeler testified about a public disturbance involving a group of individuals, including Donald Marks and Brenda Kane, who vandalized a gas station, leading to power outages. The jury could determine that their actions constituted a public disturbance and that Kane aided Marks in attempting to shut down the gas station. Evidence shows Kane's involvement in the attack and her presence during threatening behavior supported the prosecution's claims of her intent to create disorder. On January 9, 1988, a separate incident at a bingo hall involved John Kane and Donald Marks, among others, where a door was broken down, resulting in assaults on Jerome Waterman and Clint Hill. The jury could conclude this also constituted a public disturbance under the anti-riot act. The defendants’ presence and actions indicated a conspiracy to disrupt the peace on tribal territory. Linda Marks was convicted of conspiring to violate the anti-riot act despite being acquitted of the direct offense, as her statements about the planned break-in showed her knowledge and support of the conspiracy. The jury found sufficient evidence to establish two conspiracies: one to damage the bingo hall and another to violate the anti-riot act, leading to convictions for several defendants, including Beglen, Brenda Kane, John Kane, and Donald Marks. The court found meritless other arguments from the defendants and affirmed most convictions, while reversing convictions for theft-related counts and Linda Marks's perjury charge due to ambiguity in the question posed.