United States v. Jeff Livingston, 725 F.3d 1141

Background

Livingston was general manager of Chukchansi Gold Resort & Casino (tribal-owned) and was indicted for theft under 18 U.S.C. § 1168(b) and six counts of mail fraud for using casino corporate credit cards for personal purchases.
The casino’s gaming ordinance was Commission-approved “for gaming only on Indian lands.”
After a first trial ended in a deadlocked jury, a superseding indictment charged an additional § 1168(b) count and six mail-fraud counts; Livingston moved to dismiss arguing the indictment failed to allege the casino’s location on Indian lands and that mail-fraud counts were insufficiently specific.
The district court denied dismissal, required the government to prove the casino was on Indian land at one stage but later concluded location is not an element; the second trial resulted in convictions on all counts.
On appeal Livingston challenged: (1) whether § 1168(b) requires proof the gaming establishment is located on Indian lands; (2) sufficiency of the indictments for § 1168(b) and mail fraud; (3) mail-fraud jury instruction (intent to defraud); and (4) admission of prior-act evidence under Fed. R. Evid. 404(b).
The Ninth Circuit affirmed, holding location is not an element of § 1168(b), the indictment was sufficient, jury instructions were correct, and 404(b) evidence was properly admitted.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 1168(b) requires proof the gaming establishment is on Indian lands	Livingston: location is an element and jurisdictional; must be alleged/ proved	Government: statute requires only that establishment be operated/licensed pursuant to a Commission-approved ordinance	Court: Location is not an element; statute’s text requires proof of Commission approval only; affirmed
Sufficiency of § 1168(b) notice (identity/timing of stolen property)	Livingston: indictment failed to identify specific items and exact timing for one count	Government: indictment gave a narrow time window, identified items generally and method (corporate card) sufficient under Hamling standards	Court: indictment met minimal constitutional specificity; allowed prosecution to proceed
Sufficiency of mail-fraud allegations	Livingston: mail-fraud counts were conclusory and vague, risking mismatch between grand jury and trial evidence	Government: superseding indictment described scheme (personal purchases with company funds), listed categories of purchases and specific mailed items supporting each count	Court: indictment, read in entirety, supplied adequate factual detail; counts were sufficient
Jury instruction on intent to defraud & admission of prior-act evidence	Livingston: jury should have been instructed that mail fraud requires intent to cause financial loss; prior-act evidence (golf bag/helmet) was irrelevant because not proved stolen	Government: Ninth Circuit model instruction defining intent as intent to deceive/cheat is correct; prior acts showed intent/absence of mistake and were supported by testimony	Court: model instruction correct (intent to cause pecuniary harm not required); 404(b) evidence admissible to show intent/absence of mistake; convictions affirmed

Key Cases Cited

Carter v. United States, 530 U.S. 255 (use of statute title only when text ambiguous)
Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (Congress’s plenary power in Indian affairs)
United States v. Anderson, 391 F.3d 1083 (theft from tribal organizations falls within Indian Commerce Clause reach)
N. Cnty. Cmty. Alliance v. Salazar, 573 F.3d 738 (IGRA limits tribal gaming to Indian lands; scope of Commission approval discussion)
Lamie v. United States Tr., 540 U.S. 526 (statutory text controls absent ambiguity)
United States v. Treadwell, 593 F.3d 990 (intent-to-defraud instruction need not require intent to cause pecuniary harm)
United States v. Bohonus, 628 F.2d 1167 (indictment must allege elements and provide factual notice)
Hamling v. United States, 418 U.S. 87 (standards for sufficiency of indictment)
United States v. Givens, 767 F.2d 574 (indictment to be read in entirety and construed sensibly)