United States v. Tonry
United States v. Tonry
Opinion of the Court
ORDER AND REASONS
Defendant filed a Motion to Dismiss the Indictment contending that the Court is
Defendant, Richard Tonry, was indicted on two counts of interstate travel in aid of racketeering and one count of conspiracy to do so, in violation of 18 U.S.C. § 1952. The unlawful activity complained of in the indictment implicates local law, specifically, the Louisiana commercial bribery laws as announced in R.S. 14:73. The pertinent Louisiana statute defines commercial bribery as the giving or offering to give anything of value “to any private agent, employee, or fiduciary, without the knowledge and consent of the principal or employer” with the intent to influence the recipient’s action relating to the affairs of his employer or principal. In this case, the recipient of the bribe was the Chairman of the Tribal Council of the Chitimacha Indian Tribe, located near New Iberia, Louisiana.
BACKGROUND
A brief sketch of the history of the events which are the subject of this indictment will help place the issues raised by this Motion into focus.
Defendant was indicted on November 22, 1985 by a Federal Grand Jury. He was charged with conspiracy to engage in interstate transportation in aid of a racketeering enterprise, and two counts of engaging in interstate transportation in aid of racketeering, all in violation of 18 U.S.C. §§ 371, 1952, and 2.
The indictment sheds light on the attempt of the Chitimacha Indians to improve what they thought was a deteriorating financial condition. The Chitimacha Indians, who once controlled a sizable portion of southern Louisiana, are confined to a small reservation near New Iberia, Louisiana. The Tribe, which now numbers a few hundred individuals, felt it was unable to generate income on its reservation. Larry Burgess, Chairman of the tribe,
Burgess Is A Fiduciary
If Burgess is neither a private agent, employee, or fiduciary, within the meaning of R.S. 14:73,. Tonry cannot be said to have committed any unlawful activity within the meaning of the federal statutes under which he is charged. Defendant’s argument on this point essentially urges that Burgess cannot be a private agent, employee, or fiduciary as the Chairman of a sovereign Indian nation. The argument is untenable and unduly restrictive; it appears to be contrary to common sense and the plain language and intent of the statute.
Tonry allegedly paid the bribe in New Orleans, off the Reservation. The bribe was paid to the tribal Chairman, who had been placed by his tribe in a classic position of trust and confidence to negotiate a commercial contract on their behalf. The payment to Burgess was allegedly made without the tribe’s knowledge or consent and was made for no other reason other than to persuade, induce, influence, or entice Burgess to enter into a contract with Tonry’s corporation contrary to the rules of honesty and integrity. See City of New Orleans v. Belas, 235 La. 867, 106 So.2d 291 (1958). Thus, the essential elements of commercial bribery are present. To the Court, there is little doubt, if the charges in the indictment are true and correct, that Burgess was acting unqualifiedly as a fiduciary of his tribe. In State of Louisiana v. Hagerty, 251 La. 477, 205 So.2d 369 (1967) cert. denied 391 U.S. 935, 88 S.Ct. 1848, 20 L.Ed.2d 855 (1968), reh. denied 393 U.S. 899, 89 S.Ct. 70, 21 L.Ed.2d 187 (1968), the Louisiana Supreme Court spoke clearly to the meaning of fiduciary; the Court’s words dramatically fit this situation:
“The word ‘fiduciary,’ as a noun, means one who holds a thing in trust for another, a trustee; a person holding the character of a trustee, or a character analagous to that of a trustee, with respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires; a person having the duty, created by his undertaking, to act primarily for another’s benefit in matters connected with such undertaking ...”
Id. at 374. The Hagerty court stated that the central feature of one’s fiduciary responsibilities is the transaction of business for the benefit of another to whom he stands in a relation implying and necessi
The Court Has Jurisdiction
This Court also believes that federal jurisdiction has been properly invoked, and feels that this argument requires only brief attention. The indictment charges that Tonry committed the unlawful acts off the Reservation. That is critical to the flaw in defendant’s position. The indictment charges one who is not an Indian with the commercial bribery of an Indian, which took place in New Orleans. Thus, both the federal and state governments have an interest in protecting the integrity of their laws by exercising jurisdiction.
Federal and state jurisdiction is not always preempted by Indian concerns. See F. Cohen, Handbook of Federal Indian Law, 348-349, 352-353 (1982). See also United States v. Torres, 733 F.2d 449 (7 Cir. 1984), cert. denied — U.S. —, 105 S.Ct. 204, 83 L.Ed.2d 135 (1984), (Wisconsin state court had jurisdiction to punish an Indian who committed a crime off the reservation and within the state territory).
Since the indictment charges a non-Indian with commercial bribery of an Indian off of the reservation, this Court has jurisdiction of the offense for reasons strikingly analogous to Torres.
Tonry’s Travel
Finally, the Fifth Circuit has made it clear that travel which is incidental to some criminal activity need not form the essence of the unlawful activity in order to provide a basis for a criminal offense. Thus, all that is required is that Tonry’s travel was somehow connected with the unlawful activity so as to facilitate it or assist its success. The trip to San Francisco to raise money, and the trip to Washington to answer the Bureau’s questions about the operation were complimentary to the implementation of the bingo operation and satisfied the tests of the Fifth Circuit. United States v. Perrin, 580 F.2d 730, 735-736 (5 Cir. 1978), rehearing denied 585 F.2d 520, cert granted 440 U.S. 956, 99 S.Ct. 1496, 59 L.Ed.2d 199 affirmed 444 U.S. 37, 100 S.Ct. 811, 62 L.Ed.2d 419 (1979). See United States v. Pecora, 693 F.2d 421, 424 (1982), cert denied 462 U.S. 1119, 103 S.Ct. 3087, 77 L.Ed.2d 1348 (1983). Tonry’s trips were for the purpose, at least as claimed in the indictment, of executing the operation, and that is all that is required.
Accordingly, for the foregoing reasons,
IT IS ORDERED:
The defendant’s Motion to Dismiss the indictment is DENIED.
. The Chairman, Larry Burgess, was similarly indicted and pled guilty on November 6, 1985 in Section “D" of this Court.
. Defendant contends that the Chitimacha reservation is in Indian Country as defined in 18 U.S.C. § 1151(a), and that state criminal jurisdiction is preempted by both federal protection of tribal self-government and federal statutes relating to the governance of Indians, their tribes, property, and federal programs regarding Indians. See U.S. v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975).
. See U.S. v. Rained, 670 F.2d 702 (7 Cir. 1982), cert denied 459 U.S. 1035, 103 S.Ct. 446, 74 L.Ed.2d 601 (1982).
. The Chitimacha tribe is a sovereign Indian nation. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). But sovereign immunity does not extend to individual members or officers of the tribe unless they are acting in the course of their official duties (there is no such contention here). See Santa Clara Pueblo at 1677; Puyallup Tribe, Inc. v. Dept. of Game of Washington, 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977). Indian tribes are free to structure their government as they wish, if it does not violate the Indian Civil Rights Act, 25 U.S.C. § 1301 et seq.; Howlett v. Salish and Kootenai Tribes of Flathead Reservation, Montana, 529 F.2d 233 (9 Cir. 1976). The Chitimacha tribe chose to govern itself by a
. He dealt with the Butcher brothers of Tennessee, but they were unable to undertake the financial commitment necessary.
. It is at that time that the alleged $25,000 bribe was paid to Burgess.
. In early December 1984, the Government charges Tonry paid Burgess $5,000 more in accordance with their agreement.
Reference
- Full Case Name
- United States v. Richard TONRY
- Status
- Published