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Duane Big Eagle v. United States

United States District Court, Eighth Circuit

January 22, 2014

DUANE BIG EAGLE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

OPINION AND ORDER DNYING MOTION UNDER 28 U.S.C. § 2255

ROBERTO A. LANGE, District Judge.

On August 4, 2011, a jury found Petitioner Duane Dale Big Eagle ("Big Eagle") guilty of two counts of conspiracy to commit bribery of an Indian tribal official and one count of aiding and abetting a bribery involving an agent of an Indian tribal government. United States v. Big Eagle , CR 10-30088-RAL, Doc. 88.[1] The jury acquitted Big Eagle on one count of bribery involving an agent of an Indian tribal government. CR Doc. 88. This Court sentenced Big Eagle to 36 months on each of the three counts of conviction, to be served concurrently. CR Doc. 106. Big Eagle appealed to the United States Court of Appeals for the Eighth Circuit, which affirmed Big Eagle's conviction. United States v. Big Eagle , 702 F.3d 1125, 1126 (8th Cir. 2013).

Big Eagle now has filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 in this case. CIV Doc. 1. Big Eagle in his motion raised five grounds, all of which contended that his trial counsel provided ineffective assistance to him. CIV Doc. 1 at 5-6. Big Eagle filed a Memorandum of Law supporting the § 2255 motion. CIV Doc. 2. This Court screened the case and ordered the Government to file a response. CIV Doc. 7. The Government resisted the motion, CIV Doc. 17, and filed an affidavit signed by Big Eagle's trial counsel disputing Big Eagle's contentions. CIV Doc. 17-2. Big Eagle filed a reply thereafter. CIV Doc. 20. For the reasons explained herein, this Court denies Big Eagle's § 2255 motion.

I. Facts

A. Facts from underlying criminal case.

Big Eagle was chairman of the tribal council of the Crow Creek Sioux Tribe from May of 1992 through May of 1998, and then from May of 2002 through May of 2006. Tr. 45-46.[2] Big Eagle was reelected chairman in May of 2010, and was serving as tribal chairman at the time of his trial. Tr. 46. The Crow Creek Sioux Tribe is a federally recognized Indian tribe that receives federal funds consistent with the federal government's trust relationship with Native American Indians and Indian tribes.

Certain officials of the Crow Creek Sioux Tribe had accepted bribes and received kickbacks both during times when Big Eagle was tribal chairman and when Big Eagle was not tribal chairman. At Big Eagle's trial, no fewer than five of the witnesses who testified had pleaded guilty and been convicted offederal felony offenses regarding bribes and kickbacks. See Tr. 78, 89-90, 216-17, 260; see also United States v. McClatchey, 09-CR-30036-KES, Docs. 3, 15. The central question at Big Eagle's trial was whether the Government proved beyond a reasonable doubt that Big Eagle himself engaged in certain incidences of bribery and kickbacks and thus was guilty of the crimes charged.

Big Eagle was indicted on two counts of conspiracy to commit bribery of a tribal official and two counts of bribery involving an agent of an Indian tribal government. CR Doc. 3. Counts I and II of the Indictment charged Big Eagle with criminal conduct concerning the Crow Creek Tribe's schools, Royal Kutz d/b/a Kutz Construction, and Scott Raue. CR Doc. 3. Counts III and IV charged Big Eagle with engaging in criminal conduct regarding an October 21, 2008 meeting during which Big Eagle received payment from a contractor named Archie Baumann, part of which Big Eagle then distributed to tribal officials. CR Doc. 3. The parties understood there to be in essence two parts to the case-Counts I and II alleging that Big Eagle received bribes and was complicit in a bribery scheme while tribal council chairman regarding construction work done at the Crow Creek Tribe's school, and Counts III and IV alleging that Big Eagle facilitated and was complicit in a bribe paid by Archie Baumann to others at a time when Big Eagle was not tribal chairman or on tribal council. CR Doc. 3.

Big Eagle privately retained criminal defense attorney Dana Hanna. CR Doc. 18. Hanna is a member of the Criminal Justice Act panel in the District of south Dakota and an experienced trial lawyer in criminal cases in federal district court in South Dakota. Hanna filed a series of pretrial motions, including a motion for a bill of particulars, CR Doc. 26; a motion for release of Brady material, CR Doc. 38; a motion seeking to dismiss part of the indictment, CR Doc. 51; motions for ex parte subpoenas, CR Docs. 56, 57, 58, 59, 62, 63, 82; and motions in limine, CR Doc. 67. Hanna filed on behalf of Big Eagle an exhibit list and witness list. CR Docs. 78, 84.

At trial, testimony concerning the bribery scheme related to the Crow Creek Sioux Tribe's school came from those the Government alleged to be Big Eagle's co-conspirators, including Scott Raue and Norman Thompson, Sr.[3] In short, a fire in April of 2005 caused extensive damage to a dormitory at the Crow Creek Sioux Tribe school. Tr. 91-92. Around that time, the school had approximately 600 children enrolled, with 256 of those children living at the school in dormitory settings. Tr. 92. The Tribe ultimately received over $4 million from its insurer and the federal government to rebuild the dormitory and repair other buildings. Tr. 93. In addition, the school typically received in excess of $8 million dollars annually from the federal government for its operations. Tr. 94.

In 2005, and during the aftermath of the fire when school buildings were being repaired, Big Eagle was the chairman of the tribal council. Tr. 91. The chairman of the tribal council of the Crow Creek Sioux Tribe presides at meetings, but votes only in case of a tie vote. Tr. 367. Also on the tribal council at the time were Norman Thompson, Sr., Randy Shields, and Loren "Rocky" Fallis, among others. Tr. 91. The Crow Creek Sioux Tribe had no separate school board; rather, the tribal council members constituted the school board. Tr. 91.

Scott Raue was superintendent of schools for the Crow Creek Sioux Tribe at the time of the fire and rebuilding project. Tr. 90-91. Because of the immediate need to rebuild the dormitory and perform other repairs at the school, there was no bid letting for the work. Tr. 94-95. According to Raue, the tribal council gave him authority to hire contractors and certain members of the tribal council-Big Eagle, Norman Thompson, Sr., and Shields-told him how much money they wanted kicked back to them from the contractors. Tr. 95-96, 156-57.

The Tribe retained Craig McClatchey, who had worked with the Tribe previously, as the architect on the rebuilding project. Tr. 100, 232-33. McClatchey's only client at the time was the Crow Creek Sioux Tribe. Tr. 237. McClatchey testified that he over billed for his services and kicked back payments totaling between $80, 000 and $120, 000 from his fees to Raue. Tr. 238. At one point in the relationship, McClatchey expressed uncertainty about continuing such an arrangement. Tr. 238-41. During a lunch McClatchey was having with his daughter and Raue in June or July of 2005, McClatchey met the tribal chairman, whom McClatchey identified at trial as Big Eagle. Tr. 240-42. Big Eagle upon meeting McClatchey stood behind McClatchey's daughter, looked at McClatchey, and said, "You are going to play ball with us, aren't you, Craig?" Tr. 242.

One of the contractors hired to do work on the Crow Creek Sioux Tribe and at the Crow Creek Sioux Tribe's School in 2005 was Royal "Shorty" Kutz, who did business as Kutz Construction. Tr. 63-64. Kutz dealt with Raue, billing the Tribe what Raue told him to bill. Tr. 77-78. Kutz commonly would deposit checks received from the Tribe at his bank and withdraw cash of $10, 000, Trial Exs. 3, 7, 14, 17, or, in one case, $8, 000, Ex. 10. Kutz then would hand cash to Raue or leave cash in a specified location for Raue to retrieve. Tr. 67, 77.

Raue testified that he paid cash to Big Eagle on ten to fifteen occasions out of the kickbacks he was receiving on the construction work at the school. Tr. 118. Raue acknowledged that he himself kept and spent a lot of money and that the amount he personally retained from the bribery and kickback scheme exceeded his $60, 000 a year salary. Tr. 144. Norman Thompson, Sr., a member of the tribal council and in turn the school board at the time, testified that he received moneys from Raue that were being kicked back from the school rebuilding project. Tr. 268-69. Norman Thompson, Sr. recounted a meeting in or around October of 2005 at Big Eagle's place of business-a bait shop at Fort Thompson, South Dakota. Tr. 269-70. At that meeting, Big Eagle, Norman Thompson, Sr., and fellow council member Shields and Raue were present. Tr. 269-70. Raue put money on the pool table, which Big Eagle divided up in a way where $2, 000 each went to Shields, Norman Thompson, Sr., and Raue, with Big Eagle retaining $4, 000, a larger share because he was tribal council chairman. Tr. 269-70.

In May of 2006, Lester Thompson-not to be confused with Norman Thompson, Sr.-became tribal chairman thereby succeeding Big Eagle. Tr. 367-68. Lester Thompson became concerned about where all the money had gone and about the very poor financial state of the Tribe. Tr. 367-370. After reviewing tribal financial records regarding the school, Lester Thompson called law enforcement because of the evident misuse of funds. Tr. 370. The Office of Inspector General of the United States Department of the Interior thereafter became involved. Tr. 370. The bribery scheme began to unravel, with Raue, Kutz, and McClatchey, among others being indicted in federal court.

In the face of this evidence, Hanna ably cross-examined the witnesses, eliciting from Kutz that he had no direct dealings with Big Eagle. Tr. 81-82. Hanna assailed Raue as being a gambling addict and a crook, who was testifying in an effort to have his sentence reduced. Tr. 130-31, 141. Hanna established that McClatchey had only once met the tribal chairman, tried to get McClatchey to concede that the meeting was too long ago to remember clearly, and asked questions to cast doubt on whether it was Big Eagle at the lunch. Tr. 248-50, 257-59. Hanna in cross-examination ripped into Norman Thompson, Sr. for his past contradictory statements. Tr. 300-06. Hanna's ...


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