United States v. Newell
2011 U.S. App. LEXIS 14168
| 1st Cir. | 2011Background
- Passamaquoddy Tribe's Indian Township Reservation in Maine suffered extensive financial mismanagement during Newell's 2002–2006 tenure as governor and Parisi's tenure as finance director.
- Newell directed interfund transfers, ghost payrolls, and loans from grant funds to the tribal government, with many loans never repaid.
- Parisi signed key financial reports and 269 forms, knew grants' restrictions, yet corroborated and executed fund reallocations.
- The Tribe received multi-year federal funding (SAMHSA, BIA, IHS, EPA, DOJ COPS) with strict program-specific use rules; settlement act frameworks limited state jurisdiction over internal tribal matters.
- Trial resulted in Newell and Parisi convictions on numerous counts; MVRA restitution orders were imposed; the court vacated Parisi's count 5 conviction and remanded for restitution clarification, but otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over internal tribal matters | Newell/Parisi contend Counts involve internal tribal matters | Government asserts federal jurisdiction due to non-tribal, general crimes against federal funds | Counts 1, 2, 29, 30 are within federal jurisdiction; not protected as internal tribal matters. |
| Sufficiency of evidence for count 1 (conspiracy to misapply funds) | Parisi argues no express agreement; no concert of action shown | Evidence shows tacit accord and coordinated scheme to divert funds | Sufficient evidence of concerted action; conspiracy conviction stands. |
| Sufficiency of evidence for count 5 (false statements) | Parisi contends knowledge/willfulness not proven; form not material | Government proved signing of false form; knowledge may be inferred | Insufficient evidence of Parisi's knowledge that the 269 form was false; count 5 vacated. |
| Duplicitous indictment and unanimity | Bundling multiple transactions in single counts violates unanimity | Unanimity not required for alternate means; asserts proper aggregation | Counts 2, 7, 8, 9, 11, 29, 30 duplicitous; failure to give unanimity instruction was error; plain error not satisfied; remand possible for clarification. |
| Restitution calculation and victims | Argues amounts reflect actual losses; includes selected acquitted or unproved items | Restitution appropriate for reasonably foreseeable harms; includes co-conspirator losses | Vacates $129,044 from Parisi; remands for clarification on Housing Authority transfers; otherwise affirms restitution. |
Key Cases Cited
- Akins v. Penobscot Nation, 130 F.3d 482 (1st Cir. 1997) (settlement act factors on internal tribal matters; tribal sovereignty limits)
- Boots, 80 F.3d 580 (1st Cir. 1996) (tribal sovereignty does not bar federal jurisdiction over general crimes)
- Schad v. Arizona, 501 U.S. 624 (U.S. 1991) (unanimity and multiple modes of commission warning against duplicitous counts)
- Richardson v. United States, 526 U.S. 813 (U.S. 1999) (unanimity required for instances within a continuing offense)
- Bell v. United States, 349 U.S. 81 (U.S. 1955) (lenity and unit of prosecution guidance for ambiguous statutes)
- Verrecchia, 196 F.3d 294 (1st Cir. 1999) (unit-of-prosecution for multiple firearms; supports transaction-based grouping)
- Lee, 317 F.3d 26 (1st Cir. 2003) (unanimity and element/structure distinction under § 1029(a)(3); not controlling here but relevant to unanimity approach)
- Cruzado-Laureano, 404 F.3d 470 (1st Cir. 2005) (aggregation within one-year period to meet jurisdictional minimum under § 666)
- Sabri v. United States, 541 U.S. 600 (U.S. 2004) (federal interest in federal funding and spenders)