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United States v. Livingston

United States Court of Appeals, Ninth Circuit

August 7, 2013

United States of America, Plaintiff-Appellee,
v.
Jeff Livingston, Defendant-Appellant

Argued and Submitted April 15, 2013 San Francisco, California

Appeal from the United States District Court for the Eastern District of California, D.C. No. 1:09-cr-00273-LJO-1 Lawrence J. O'Neill, District Judge, Presiding

COUNSEL

Ann C. McClintock (argued), Assistant Federal Defender, and Daniel J. Broderick, Federal Defender, Sacramento, California, for Defendant-Appellant.

Kirk E. Sherriff (argued), Assistant United States Attorney, and Benjamin B. Wagner, United States Attorney, Fresno, California, for Plaintiff-Appellee.

Before: Susan P. Graber and Morgan Christen, Circuit Judges, and John R. Tunheim, District Judge.[*]

SUMMARY[**]

Criminal Law

The panel affirmed convictions for mail fraud (18 U.S.C. § 1341) and theft by an officer or employee of a gaming establishment on Indian lands (18 U.S.C. § 1168(b)).

The panel held that the location of the gaming establishment is not an element of the offense under § 1168(b), and that the allegations in the indictment were sufficiently specific to apprise the defendant of the specific offenses with which he was charged.

The panel also held that the district court's jury instructions correctly defined "intent to defraud, " and that the district court did not abuse its discretion by admitting prior acts evidence under Fed.R.Evid. 404(b).

OPINION

CHRISTEN, Circuit Judge

Jeff Livingston appeals his convictions for mail fraud (18 U.S.C. § 1341) and theft by an officer or employee of a gaming establishment on Indian lands (18 U.S.C. § 1168(b)). Livingston argues that, in prosecutions under § 1168, the government must prove the gaming establishment is actually located on Indian lands. Because this purported element of the offense was not alleged in the indictment or included in the jury instructions, Livingston maintains that his conviction must be reversed. Livingston also argues that the indictment did not adequately allege mail fraud and that the jury instructions did not correctly define "intent to defraud." Finally, Livingston argues the district court erred by admitting evidence of prior acts pursuant to Federal Rule of Evidence 404(b).

We have jurisdiction pursuant to 28 U.S.C. § 1291. We conclude the location of the gaming establishment is not an element of the offense under 18 U.S.C. § 1168(b) and that the indictment adequately alleged mail fraud and theft by an officer or employee of a gaming establishment on Indian lands. We see no error in the jury instructions or in the admission of the prior acts evidence under Rule 404(b). We affirm Livingston's convictions.

I. BACKGROUND

A. Statutory Background

Section 1168 provides criminal penalties for officers, employees, or licensees who steal from gaming establishments "operated by or for or licensed by an Indian tribe pursuant to an ordinance or resolution approved by the National Indian Gaming Commission." 18 U.S.C. § 1168(b). The statute is titled "Theft by officers or employees of gaming establishments on Indian lands."

Section 1168 is part of the Indian Gaming Regulatory Act ("IGRA"). Pub. L. No. 100–497, 102 Stat. 2487 (1988). IGRA regulates tribal gaming activity on Indian lands. 25 U.S.C. §§ 2701(1), 2701(3), 2702(2), 2702(3). To facilitate IGRA's objectives, Congress established the National Indian Gaming Commission ("Commission"). 25 U.S.C. §§ 2702(3), 2704.

IGRA requires that an Indian tribe have a Commission-approved gaming ordinance or resolution before offering certain classes of gaming activity. 25 U.S.C. § 2710(b), (d). Even though IGRA "limits tribal gaming to locations on 'Indian lands, '" N. Cnty. Cmty. Alliance v. Salazar, 573 F.3d 738, 741 (9th Cir. 2009), a proposed ordinance need not specify the location of a proposed gaming establishment, id. at 746, and the Commission is not obligated ...


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