*1 871 the Court’s instructions in that regard.” downward departure under U.S.S.G. 5K2.20, defense argu- When counsel resumed her provides which for downward objection, said, ment after the she departures “As in extraordinary cases if the [Grassrope] sits here he’s covered with a defendant’s criminal conduct constituted blanket, basically, of innocence.” The aberrant behavior. The departure is not prosecutor object. did not In his rebuttal available cases involving serious bodily argument, the prosecutor jury death, told the to injury l(i) or and Application Note follow Court’s reasonable in- doubt provides U.S.S.G. 1B1.1 that ‘“serious anything struction and not he or defense bodily injury’ is deemed to have occurred counsel said. Given closing argu- after the if the offense involved constituting conduct ments, the instructions themselves were criminal sexual abuse under 18 U.S.C. without error. They clearly §§ instructed 2241 or 2242 any or similar offense that the presumption of innocence alone is under state law.” Grassrope argues that sufficient to find the defendant guilty, “deeming” provision of 1B1.1 violates presumption of innocence can be the Due Process Clause. For support, he only government overcome if the proves, relies on holding cases that an irrebuttable doubt, beyond a reasonable each essential presumption violates the Due Process element of the charged, crimes and that if Clause government relieves the the defendant prove has no burden to in- meeting its burden proof as to an essen- nocence. tial element of the charged. crime guideline section in question impact has no The prosecutor’s objec speaking on the burden proof with respect to the tion misstating the law on the presumption charged crime and the authority cited of innocence was A improper. new trial is Grassrope Moreover, is inapposite. if required that misconduct taken in the argument that the applicable guideline is context of the prejudicially entire trial af unconstitutional was not made to the dis- fected the defendant’s substantial so court, trict and has therefore been waived. deprive as to him of a fair trial. See Cannon, United States v. 88 F.3d The judgment of the district court is (8th Cir.1996); United States v. Ma AFFIRMED. lone, (8th Cir.1995); 49 F.3d McGuire,
United States v. 45 F.3d (8th Cir.1995), United States v. Em
mert, (8th Unit Cir.1993); 9 F.3d Johnson,
ed States v. 968 F.2d
(8th Cir.1992). Having reviewed the trial
transcript, we conclude that the improper reasonably
remarks could not have affect jury’s ed the verdict. See United States v. KAGA, INC., OTI Appellant, Plaintiff — Alanis, (8th Cir.1991). 945 F.2d IV. DENIAL OF DOWNWARD DE- SOUTH DAKOTA HOUSING DEVEL PARTURE AUTHORITY; OPMENT William
Finally, Grassrope appeals Earley; Darlys Baum; John Roth district court’s denial of his motion for a stein; Culhane; Lynn Hager; Kevin Kleinsasser, departure downward based on aberrant Schramm; Thomas Leland conduct. The court refused to consider a ppellants. Def endants— A *2 Housing Authori-
Cheyenne River Tribe, Cheyenne River Sioux
ty; Appellants on behalf
Amicus 02-1673.
No. Appeals, Court of States
United Circuit.
Eighth 12, 2002. Dec.
Submitted: 15, 2003. Sept.
Filed: 21, 2003.
Rehearing Denied: Oct. *4 Falls, Allen, argued,
Rita Sioux SD (Mark brief), Berry, appellant. on the for Butt, Kidder, argued, Eagle L. Rebecca SD, appel- on behalf of on behalf amicus lants. Marshall, argued, F. and Michael
Mark Falls, SD, Luce, argued, ap- for L. Sioux pellees. HANSEN, Judge,1
Before Chief BYE, Judges. HEANEY and Circuit BYE, Judge. Circuit the district court’s2 Kaga appeals dismissing its summary judgment complaint against the South eleven-count Housing Development Authority Dakota (SDHDA) and its seven-member board. complaint alleges discrimi- SDHDA against Kaga by rejecting its nated for tax credits under Internal applications (IRC) § and for Revenue Code Partnership under the HOME Investment (HOME Program), 42 U.S.C. Act §§ 12741-12756. We affirm.
I es- non-profit corporation is Cheyenne River Sioux tablished pursuant to the United government Tribal Kornmann, B. Unit- stepped R. 2. The Honorable Charles 1. David Hansen The Honorable Judge Judge of the United States down as Chief ed States District for the District Eighth Appeals Circuit at the Court of Dakota. South He has on March close of business by the Honorable James B. been succeeded Loken. 1937, 42 grants States Act of loans and “to provide incentives to Kaga’s purpose §§ develop 14S7-1437x. Oti and support affordable rental construct, acquire, operate rental housing and ownership home affordabili- 12742(a)(1). housing Chey- and related facilities on the ty.” § 42 U.S.C. Prior to 1998, states, enne River Sioux Indian Reservation. certain municipalities, and In- dian tribes were participating jurisdictions independent public SDHDA is an instru- in the Program. HOME 42 U.S.C. mentality exercising public essential func- 12747(a)(2). § Accordingly, each Indian under 11—11— tions S.D. Codified Laws tribe South Dakota apply directly could for, is responsible among SDHDA Department to the of Housing and Urban things, adopting other implementing (HUD) Development for an Indian HOME plan pursuant tax credit allocation to IRC Program allocation. Indian tribes could administering as well as the state apply also to the housing develop- Program in Appel- South Dakota. authority ment state HOME Rothstein, Earley, lees William John Kevin According funds. regulation HUD Culhane, Lynn Hager, Thomas Schramm Part C.F.R. pro- “[a] State fund and Leland Kleinsasser are members of *5 jects on Indian reservations located within Commissioners, SDHDA’s Board of and provided the State that the State includes appellee Darlys Baum is SDHDA’s Execu- Indian reservations in its consolidated tive Director. Baum and board mem- plan.” separate Because of the allocation bers were individually sued and in their existing prior to adopted SDHDA capacities. official annual Program HOME Plans which in- out of arise SDHDA’s cluded demographics reservation pre- but housing administration of two federal pro- cluded the use of state Program HOME first, grams. The the tax credit allocation projects. funds for tribal program, by § is authorized IRC and encourages Congress investment in enacted the low-income hous- Native ing projects. Housing American and Under the tax credit alloca- Self-Determination (NAHASDA), §§ Act tion program, housing agencies state are U.S.C. 4101-4243. NAHASDA, In conjunction with responsible allocating Congress tax credits for terminated programs construction of low-income several which had housing. 42(h)(3) assistance, § provided housing Indian IRC limits the total number includ- housing Program. credits a the Indian HOME allocate annu- Thereaf- 42(m) ter, § Indian ally, housing and assistance was requires IRC the credits funded directly through Housing to be allocated in Indian Block “quali- accordance with a (IHBG), § fied allocation Grants 25 U.S.C. and dis- plan.” plan The annual bursed to prepared by recipients must be on the basis of Indian housing the state’s (IHP) agency approved prepared by Plans by governmental unit of which the tribes submitted to HUD. 25 agency part. is a IRC U.S.C. 42(m)(l)(A)(i). § § Program funding, Unlike HOME SDHDA is the autho- which is based on a housing agency competitive process, rized for South Dakota. § IHBGs are entitlement funds which tribes S.D. Codified Laws 11-11-47. locally use to meet identified needs. 25 The second program at issue is the 4116(b)(1). Program. HOME The HOME Program provides housing directly federal funds Notwithstanding consolidation of Indian- jurisdictions. participating jurisdic- NAHASDA, funding programs under tions disburse in regulations those funds the form of implementing HUD applicant its Program continue allow states successful declined award.
HOME projects on contends fund Indian Oti it was discriminated the discretion against initially because provided the state includes decision reservations deny tax credits was on race. in annual HOME Pro- based its the reservations Plan. 92.201. Prior to gram C.F.R. Elk intended to build View I NAHASDA, SDHDA chose to passage using tax credits and Indian Home Pro- in its annual plan include reservations but gram funding obtained in It intend- Program funds not award state HOME did of the Elk phase ed build the second jurisdic- or other Indian reservations (Elk II) using tax project View cred- receiving separate allocations of tions Program funding and Indian Home After became effec- NAHASDA funds.3 in 1997. awarded contends practice. continued this tive SDHDA injuries and palpable” suffered “distinct in projects planned connection with those with Kaga, In March the assis- delay tax by awarding caused in cred- Bland,4 appli- David submitted an tance of alleges 1996. Oti it was told tax cation for credits SDHDA connec- Indian Home would not proposed housing development tion with be awarded in 1996 tax credits were unless I) (Elk Cheyenne View located on Riv- initially also awarded. Because it was de- Indian Of the twen- er Sioux Reservation. credits, nied Kaga ignored tax ty-three applications for tax credits re- Indian application dead- four ceived SDHDA came from result, line. Elk I delayed As View was ap- tribes. SDHDA Indian considered the until 1997 and ran cost into overruns. Oti them from plications ranked one to *6 Kaga alleges it was harmed further be- to its twenty-three according tax credit cause it forced was to use Indian Home plan, being highest with one the allocation Program funds obtained which twenty-three rated and lowest rated II, had earmarked for Elk been View to application. Kaga’s application Oti was delayed construct the I project, Elk View but, twenty-three of as with ranked six out in turn thereby delaying Elk View II. Oti higher other it did not applications, ranked alleges price quote also obtained Only an one receive award tax credits. of for an environmental for Elk assessment of the tax credit went an Indian awards I significantly View increased from 1996 sponsor. ranking In criteria addition 1997. 42(m)(l)(C)(i-viii), § set out in IRC extent
SDHDA considered the to which Oti Kaga also claims discrimination re- sponsor ready of was application sulting from SDHDA’s decision proceed. One of SDHDA testi- member award state HOME funds in Program heavily against fied this factor weighed Oti noted, previously Kaga alleg- As Kaga. Another member board stated ites was forced to use Indian 1997 board decided award tax it should one Program funds to I. build Elk View As a tribe, to an credit and result, Indian a lower it had to seek funding alternative ranked Indian-sponsored application Thus, was for II. Elk View in 1997 Oti Kaga selected. applied October was for SDHDA state HOME fund- subsequently ing the tax credits after Elk application awarded to finance View II. Its exception policy operates 3. The sole Housing Community to this was Bland and Inc., bridge allocation in Development, specializes the form of a loan to the assist- Dakota, Falls, tribes, others, city ing of among Sioux was develop- South which Indian with repaid following year. housing projects. tax credit financed any Program arising for state HOME from the of denial Among the for de- given application denied. reasons for tax credits because it sus- nying application and, were SDHDA’s belief tained alternatively, no 1) housing projects on Indian reserva- by claims were expiration barred of the NAHASDA, tions for provided were under of statute limitations. The district court 2) Program state HOME funds were also dismissed Oti claims arising longer projects. no available for Indian out the denial of its application credits, As with of tax the denial HOME Program funding, finding Oti argues deny application the decision to Kaga could not make out a prima facie state HOME showing of intentional discrimination or based on race. Oti contends it was disparate impact. Kaga, Inc. v. S.D. discriminatory harmed refusal to Auth., Housing Dev. 188 F.Supp.2d Program award state HOME funds be- (D.S.D.2002). 1160-68 of funding delayed cause the lack construc- tion of Elk II. II Kaga brought suit against SDHDA We review a 1) summary judg- claiming and its dispa- board members novo, ment de applying the rate same standard Housing treatment under the Fair 1968(FHA), as the §§ Act district court. Jaurequi Carter U.S.C. & 2) 3605; Co., (8th Mfg. 173 F.3d disparate impact under the Fair Cir. 1999). Summary §§ Act judgment U.S.C. 3604 & proper if 3) 3605; contract, right violation of the genuine there exists no any issue as to 4) 1981; prop- violation material fact moving and the is enti- party citizens, erty rights 1982; 42 U.S.C. judgment tled to as a matter of law. Fed. 5) disparate under treatment/impact 56(c). R.Civ.P. When ruling on sum- 1866, 42 Rights Civil Act of U.S.C. mary judgment motion, a must court view 6) 1982; §§ 1981 negligent perform- light the evidence “in most favorable to 7) statutory obligations; ance of discrimi- the nonmoving party.” Appleton Dush v. nation in the allocation of HOME (8th Co., Elec. 124 F.3d Cir. 962-63 *7 funds, 8) 12832; § 42 U.S.C. discrimina- 1997). However, a pres “nonmovant must tion in programs Title (disparate VI treat- ent more than a scintilla of evidence and 9) ment), 2000d; § 42 U.S.C. improper must advance specific facts to create a 10) credits, 42(m); allocation of tax IRC genuine issue of material for trial.” fact violation, state Fair Act S.D. Co- (8th Bell, F.D.I.C. v. 106 F.3d 263 11) 20-13; dified depriva- Laws Ch. Cir.1997). law, tion of under color 42 of Appellees summary moved for A. Standing to assert denial tax of judgment standing, on the basis of political credits doctrine, mootness, question qualified im- The court munity, granted district sum inability corporation, the of a to mary judgment recover and dismissed damages personal injury, for stat- limitations, claims inability arising ute of from denial of tax credits prove the to discrimination, finding allege intentional it in any injury a failure to failed to fact. ex- remedies, haust state We review the district administrative court’s of join indispensable failure to parties. summary judgment standing based on de district summary court granted judgment novo. National Fed’n the Blind Mo. of of Cross, Cir.1999). finding Kaga standing (8th lacked bring to v. 184 F.3d 979 'in of at standing incapable proof of trial.” National question
“The
Mo.,
on
limitations
fed
the
at 979
... constitutional
Fed’n
Blind
F.3d
volves
of
of
”
(citation omitted).
Bennett
v.
jurisdiction.’
eral-court
154, 162,
117 S.Ct.
Spear, 520 U.S.
delay
awarding
the
in
claims
(1997) (quoting Warth v.
137 L.Ed.2d
forego applying
tax
it to
for
credits caused
490, 498,
2197, 45
Seldin,
95 S.Ct.
422 U.S.
Program funding
HOME
in
Indian
(1975)).
L.Ed.2d
thereby
resulting
Elk View I and
delaying
or controversy
case
re-
satisfy
To
the
overruns. Oti
further claims
cost
III,
the
of Article
which is
quirement
it
harmed
to use 1997 Indi-
having
was
minimum of
constitutional
irreducible
the
HOME
funds
construct
must, generally
a
plaintiff
leaving
Elk
I project,
View
it without
he
demonstrate that
has suf-
speaking,
II
funding
source for
1997 Elk
the
fact,
injury
injury in
fered
delay
it
project. Finally,
contends
of the
actions
fairly traceable
caused the
of an
construction
cost
environ-
defendant,
injury
likely
will
and that
mental assessment
increase.
aby
favorable decision.
be redressed
alleged
We conclude Oti
has
omitted).
(internal quotations
Id.
fact,
injury
appel
sufficient
traceable to
fact is
invasion
Injury in
“an
of
lees,
requirements
satisfy
of stand
(a)
interest which is
con
legally protected
question
ing.
Kaga’s ability
We
(b)
actual or
particularized,
crete and
prove its damages
given
its decision
imminent,
conjectural
hypothetical.”
not
or
deadline,
ignore
application
but
Wildlife,
U.S.
Lujan v. Defenders of
allegations
incapable
find the
are not'
555, 560, 112
Pub. (8th Cir.1999). Instead, Kaga’s relating to denial the tax summary at the claims of accept by applicable all were stat- judgment stage as true mate credits barred alleged “long they agree. rial as not ute of limitations. We facts as are allegations. contrary holding ap- ages We share the district The district court's pears part driven difficulties it en- in court’s sentiments. Kaga's deciphering in countered Oti dam- court, account, citing The district v. into Kaga’s complaint Wilson Oti Garcia, 261, 266, 471 U.S. timely. S.Ct. (1985),
fair housing The record shows C. Denial HOME filed fair housing complaint Next, Kaga alleges several causes of following application denial for tax arising action out of denial of complaint SDHDA’s pend- credits remained from through September October funds in 1997. We If period this 23-month taken consider each of these turn.7 *9 two-year 6. Because we decline to the The consider district court determined Oti had alleged injury in fact to sufficient related the argument, statute of limitations we reserve for denial of to question day another of whether the toll- requirements standing. meet the of Article III 3613(a)(B) ing provision applies. Appellees point appeal. this concede on 880 litigants suited claims the federal courts to best Act
1. Fair
Gladstone,
particular
a
claim.”
to assert
alleges disparate treatment
Oti
Bellwood,
Village
441 U.S.
Realtors v.
of
resulting
from
impact
disparate
1601,
91, 99-100,
881 Congress plaintiffs also “enact statutes as in this action. We conclude may. creating legal the invasion of which rights, even no though creates for prudential test standing The
would exist without
the statute.”
Id.
“is whether the
statutory
constitutional or
D.,
v.
Linda R.S.
Richard
410
(quoting
provision on which the'
properly
claim rests
614,
3,
1146,
n.
617
93 S.Ct.
35
U.S.
can be
as granting persons
understood
in
(1973)).
instances,
In
L.Ed.2d 536
such
plaintiffs position
right
judicial
a
standing
“may
concerns
prudential
Warth,
500,
relief.”
Id. at 706. FHA, tion must decide under now corpo- Hudson court concluded the prima made whether Oti has out position rate the best plaintiff facie case of discrimination. discriminatory alleged prac- challenge prima tice affected To establish a facie case because denial 1) discrimination, it is Conversely, it individual must show directly. 2) class, quali plaintiff protected would have to be “resident who within the 3) its funding, in attend- fied to receive allege application would have to an interest *12 4) rejected, and Disparate was SDHDA b. impact funding to awarded non-members of Oti next Kaga alleges disparate qualifications. class with similar Rowe v. impact prove under the FHA. To discrimi Mo., Union Planters Bank S.E. of analysis nation under a disparate impact (8th Cir.2002). F.3d Implicit Kaga Oti must a facially poli show neutral requirement the fourth element is the that cy significant a impact has adverse on similarly the non-members be situated. of protected members a minority group. Co., Breeding Gallagher v. Arthur J. & Club, Inc., Chambers v. Girls Omaha (8th Cir.1999). 1151, 1156 F.3d (8th Cir.1987). F.2d burden The then shifts to SDHDA to policy show the Kaga conclude Oti has failed We has a manifest relationship to the alloca to fourth facie satisfy prima element of Program tion of state HOME funds and is disparate only its treatment claim. The justifiable on it ground necessary is to presented by Kaga evidence Oti in support SDHDA’s responsi exercise of its funding prima of the fourth a facie element is M bilities. at 700-01. If SDHDA is able of single award state HOME Program justified,- to is policy Kaga show Oti city of jurisdic funds to the Sioux Falls —a prevail by showing nonetheless anoth Program tion which receives fund HOME er policy accomplish would SDHDA’s ob ing Kaga from directly HUD. Oti contends jectives without discriminatory effects. similarly it was situated because it too was Id. eligible Program to receive HOME fund ing directly from an HUD but denied SDHDA adopted policy, has a however, record, award on that basis. The with the of discretion accordance Program state indicates the HOME fund 92.201(b)(5), in 24 contained C.F.R. of to awarded Sioux Falls was actually to refusing Program award HOME state short-term loan made to Sioux Falls while jurisdictions to direct receiving funds. receipt it awaited of its direct HOME Pro Program funding HOME from HUD.8 gram from funds HUD. those funds Once Kaga argues the policy dispropor has a received, were repaid Sioux Falls the loan effect projects benefitting tionate on Indi words, assume, In other “funding” SDHDA. deciding, tribes. We without awarded to Sioux Falls Kaga’s allegations similar that Oti are sufficient by the loan or grant sought Kaga im prima disparate facie claim finance Elk development. pact. by. counters arguing SDHDA ultimately Sioux Falls loan did not deplete Program decision award state HOME Program state HOME dollars projects available funds to which cannot otherwise to SDHDA for distribution. Because access HOME is rea Kaga seeking was not a short-term it loan sonable exercise of discretion has developments cover the Elk View granted, necessary while been and is in order to awaited receipt Program Indian HOME best which it allocate limited funds for funds, Kaga Kaga we find Oti and Sioux responsible. response, Falls fails similarly were not Accordingly, any policy situated. to articulate alternative which Oti prima has failed to make a effectively facie would meet SDHDA’s needs as showing of discrimination. the alleged discriminatory without effects. argues 8. Oti pro- arising also the "readiness to cause claims of the out denial awarding ceed” by criterion used in tax credits tax credits are barred the statute of limita- tions, disproportionately impacts Indian tribes. Be- we need not address this claim. 92.201(b)(5) because, assuming this even argues decide issue Instead, prudential that Oti has Congress arguendo subject debate has been it has agree we all failed criticized some members been has disparate im- disparate treatment or believe allocation show Congress who pact in its Pair Act claims. The discriminatory. funds is *13 question may assert corporation whether recognize divergent there be We belonging non-party claims individuals a state should include views about whether one, view, my important is and in in its annual HOME Pro- demographics us prudent be more to wait would that jurisdictions Plan from receive gram until we are faced question answer Program funding, and then direct HOME case in which answer neces- with a is jurisdictions funding. deny same those sary to the of the case. disposition Nevertheless, charged is with the SDHDA a finite num- responsibility distributing join opinion respects. I in all other Program ber state HOME dollars discharg- competing interests.
among
ing responsibilities, cho- those SDHDA has deny Program funding to
sen to HOME
any jurisdiction may apply which directly .from find
HUD. We that exercise discretion necessary accomplish and reasonable EDGLEY, Plaintiff/Appellee, L. David faces. daunting task SDHDA More-
over, any Kaga has failed to offer v. policy
alternative which would meet LAPPE, Defendant, Joseph Harold effectively. According- as SDHDA’s needs ly, affirm district court’s dismissal we Dakota, Minnesota & Eastern Railroad claim. Kaga’s disparate impact of Oti Corporation, Defendant/Third Party Plaintiff,
2. Remaining claims v. appeal, On has abandoned Rollins, Objector, Krause & V, VI, IX those claims set forth Counts complaint. X of its As to remain- VII, III, IV, ing claims set forth Counts Liability Fire Insurance National & Kaga’s complaint, VIII XI of Oti Company, Corpora- a Connecticut find properly were dismissed tion, Garnishee/Appellant. affirm district court under 8th Cir. R. 47B. No. 02-2303. Appeals, United States Court of Ill Eighth Circuit. summary
The district court’s judgment is affirmed. May Submitted: Sept. Filed:
HANSEN, Judge, concurring. Circuit I the prudential would reach stand- question the court in part resolved opinion. unnecessary
I.C.l. It