United States v. Gerald Big Crow

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2917
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Gerald ‘Jump’ Big Crow, *
*
Appellant. *
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Submitted: February 10, 2003
Filed: May 5, 2003
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Before WOLLMAN, RICHARD S. ARNOLD, and MELLOY, Circuit Judges.
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WOLLMAN, Circuit Judge.
A jury convicted Gerald “Jump” Big Crow of five counts of theft from an
Indian tribal organization in violation of 18 U.S.C. § 1163. The district court
sentenced Big Crow to three years’ probation, restitution of $59,114.53, and a special
assessment of $500.00. Big Crow appeals, contending that the district court erred by
denying his motion for judgment of acquittal, as his failure to pay rent did not
constitute a violation of the statute under which he was charged. We reverse.
I.
The Oglala Sioux Lakota Housing Authority (Housing Authority) is an Indian
tribal organization that manages and maintains 1, 808 housing units on the Pine Ridge
Indian Reservation in South Dakota. The Housing Authority is governed by the
Tribal Council and a Board of Commissioners (Board). The Housing Authority
receives operational funding from the United States Department of Housing and
Urban Development (HUD) and thus is subject to HUD regulations. The Housing
Authority has established policies concerning applications for housing, certification
of income, and rent payment. The rent policy states that tenants who habitually fail
to pay rent shall be evicted.
The Board’s views concerning the calculation of rental fees have conflicted
with HUD regulations over the years. The Tribal Council enacted ordinances (later
rescinded), which the Board adopted, establishing rent ceilings. Ordinance 87-05
established the rent for the year 1987. Prior to July 2000, rent for low-income
housing was not capped but was based upon income level and family size, as
established by federal regulation. Big Crow and others who served as leaders in tribal
government believed that rental fees should be commensurate with the conditions and
appraised values of the units, rather than the income level of the residents.
Big Crow, who has been active in tribal politics and has served as a member
of the Tribal Council, first began leasing a low-rent unit in the early 1970s. In April
1987, he signed a lease with the Housing Authority establishing a month-to-month
tenancy of Unit 729-02 (unit). The lease obligated Big Crow to pay $428.00 in rent
monthly and would “be automatically terminated” if Big Crow failed to pay the rent
or violated any other provision of the lease. At the time Big Crow signed the lease,
ordinance 87-05 had been adopted by the Tribal Council pending HUD approval.
The ordinance capped a tenant’s rent at the amount paid on July 1, 1986. Big Crow
wrote on the bottom of the lease agreement, “I will not pay this [rent] till HUD comes
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up with a desision [sic] on the resolution passed by the Tribe. 87-05.” The lease also
was signed by the Housing Authority Executive Director Daryl Twiss and
representative Jacqueline Grey. Neither Twiss nor Grey approved Big Crow’s
annotation to the lease.
On April 3, 1987, HUD sent a letter notifying the Housing Authority that Tribal
Resolution 87-05 was “a direct violation of federal statute.” The Tribal Council
consequently rescinded the resolution. In June 1987, the rental fee for the unit was
increased to $472.00 per month. Big Crow, however, continued to pay the Housing
Authority $114.00 each month, the amount he was paying on July 1, 1986, for a
different residence. Big Crow neither sought nor received permission to pay a reduced
amount of rent for the unit. Twiss ultimately instituted civil eviction proceedings in
tribal court against Big Crow and seventy-nine other families who were delinquent
in paying rent. A default judgment was entered against Big Crow in June 1992
ordering his eviction. On July 1, 1992, Big Crow obtained a stay of execution of the
eviction because of the failure of his attorney to appear at the hearing on the default
judgment. The then attorney for the Housing Authority, Jerry Matthews, continued
to press Big Crow to make his full monthly payments and to become current on his
back rent. Shortly thereafter, the Tribal Council fired Twiss and Matthews and
suspended the members of the Board. No further tribal court action was taken to
evict Big Crow or any other delinquent renter. In 1996, Fern Mousseau, a Tenant
Service Representative for the Housing Authority, notified Big Crow that he owed
a significant amount of money in back rent. Although she sought to effect a
settlement of Big Crow’s arrears, no settlement was ever reached.
By 1996, tenants of the Housing Authority owed more than $2.1 million in
back rent. By 1999, Big Crow owed the Housing Authority approximately
$57,000.00. On July 1, 2000, two months before Big Crow was indicted, a new rent
policy took effect. Pursuant to the policy, units were appraised and rents were
reduced from their former level based upon the condition of the unit. The rent for the
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unit in which Big Crow lived was appraised at $100.00 per month. The policy also
provided that twenty percent of a tenant’s debt would be forgiven for each year that
the tenant paid the current rent. The rent-forgiveness provisions of the policy were
rescinded following Big Crow’s indictment.
The record reflects that Big Crow and his family still reside in the unit. Their
lease has not been terminated by the Housing Authority, nor has Big Crow or any
member of his family been evicted from the premises.
II.
On the basis of his failure to pay the required amount of rent during the years
1995 through 1999, Big Crow was indicted on five counts of theft from an Indian
Tribal organization in violation of 18 U.S.C. § 1163, which provides:
Whoever embezzles, steals, knowingly converts to his use or the use of
another, willfully misapplies, or willfully permits to be misapplied, any
of the moneys, funds, credits, goods, assets, or other property belonging
to any Indian tribal organization . . . [s]hall be fined under this title, or
imprisoned not more than five years, or both . . . .
Big Crow contends that his motion for judgment of acquittal should have been
granted because his refusal to pay the full amount of rent did not constitute a violation
of § 1163. In response, the government contends that Big Crow’s possession of the
unit and his willful failure to pay the full amount of rent owed pursuant to the lease
constituted the knowing conversion of the Housing Authority’s property and assets
in violation of the statute.
In considering a district court’s denial of a motion for judgment of acquittal,
we view “the evidence in the light most favorable to the verdict and accept as
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established all reasonable inferences supporting the verdict.” United States v.
Barrios-Perez, 317 F.3d 777, 779 (8th Cir. 2003) (citing United States v. Harmon, 194
F.3d 890, 892 (8th Cir. 1999) (citation omitted)). We will uphold the conviction
unless “no reasonable jury could have found the defendant guilty beyond a reasonable
doubt.” Id. (quotations omitted).
“[T]he starting point for interpreting a statute is the language of the statute
itself. Absent a clearly expressed legislative intention to the contrary, that language
must ordinarily be regarded as conclusive.” United States v. Long Elk, 805 F.2d 826,
828 (8th Cir. 1986) (quoting Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc.,
447 U.S. 102, 108 (1980)).
Section 1163 proscribes the embezzlement, theft, willful misapplication, and
knowing conversion of “moneys, funds, credits, goods, assets, or other property.” “At
common law only tangible property or chattels were subject to the tort of conversion.”
United States v. Collins, 56 F.3d 1416, 1419 (D.C. Cir. 1995) (citing Restatement
(Second) of Torts § 222A (1965)). The Collins court interpreted 18 U.S.C. § 641,
which renders criminally liable any person who “knowingly converts . . . any thing
of value of the United States or of any department or agency thereof,” as
encompassing “intangible[s] generally protected as personal property,” (in Collins’s
case, the use of a government photocopier to create documents for his amateur
ballroom dance activities). Id.In contrast to § 641’s broad wording “any thing of value,” § 1163 brings within
its coverage only “money, funds, credits, goods, assets, or other property,” leading
to the conclusion that the statute was intended to encompass only property falling
within the common law definition of that term. See United States v. Kehoe, 365 F.
Supp. 920, 923 (S.D. Tex. 1973), rev’d on other grounds, 516 F.2d 78 (5th Cir. 1975)
(“Notwithstanding . . . that ‘embezzlement’ is a purely statutory rather than a common
law offense, the term . . . has acquired a well established connotation which
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approaches the sanctity of a common law meaning. It is limited to items of personal
property . . . . Where a federal criminal statute uses a common-law term of
established meaning without otherwise defining it, the United States Supreme Court
has held that the general practice is to give that term its common law-meaning.”
(citations omitted)). The plain language of § 1163, therefore, cannot be construed to
encompass real property or a tenant’s failure to pay arrears on real property.
The government cites no authority for its contention that one who occupies and
pays less than the full amount of rent owed on the premises has converted or
committed theft of the property. In addition to directly contradicting the accepted
definition of statutory conversion, the proposition contradicts accepted principles of
real property law concerning landlords and tenants. See Collins, 56 F.3d at 1419;
Romea v. Heiberger & Assocs., 163 F.3d 111, 115-16 (2d Cir. 1998) (finding “that
back rent is a debt” and accordingly that landlord must follow procedures prescribed
by governing law to cancel the lease and terminate the landlord-tenant relationship);
S.D. Codified Laws § 21-16-1 (“An action of forcible entry and detainer, or of
detainer only, in maintainable: (4) If a lessee in person or by subtenants . . . fails to
pay his rent for three days after the same shall be due[.]”). The Housing Authority
retains ownership of the real property and could have effected Big Crow’s eviction,
had its efforts to do so not been interfered with. The fact that the Housing Authority
was powerless to exercise dominion over the unit and to evict Big Crow because of
apparent political interference may reflect poorly on tribal governance, but it did not
render criminal Big Crow’s continued occupation of the residence.
Likewise, Big Crow’s refusal to pay the full amount of rent owed did not
constitute conversion or theft of the arrears. In United States v. Wilkinson, 124 F.3d
971 (8th Cir. 1997), in which we interpreted 18 U.S.C. § 1163, we defined conversion
as “the knowing and unauthorized exercise of dominion over another’s property.”
Wilkinson, 124 F.3d at 977 (citing 18 Am. Jur. 2d Conversion § 30 (1985) (“The
unlawful taking of goods out of the possession of the owner with intent to convert
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them to the use of the taker is clearly a conversion.”)). The unpaid rent cannot be
converted by Big Crow because the assets he retains by failing to pay the rent remain
his assets and have never become the property of another. See id. (holding that
Wilkinson was prosecuted successfully under § 1163 because he “improperly
misapplied or converted . . . funds to his own use” that the BIA provided to him as
a Management and Technical Assistance Grant); see also United States v. French, 46
F.3d 710, 713 (8th Cir. 1995) (holding that defendant converted mortgaged property
in violation of 18 U.S.C. § 658 when he sold to a third party cattle in which the
Farmers Home Administration held a security interest); United States v. Archambault,
767 F.2d 402 (8th Cir. 1985).
Although Big Crow knowingly and substantially underpaid the rent on the unit
he leased from the Housing Authority, his failure to pay the full amount of rent owed
on the leasehold did not constitute criminal conduct proscribed by § 1163. “[O]ur
society closed its debtor’s prisons long ago.” Chapin v. Knight-Ridder, Inc., 993 F.2d
1087, 1094 (4th Cir. 1993); see also Freeman v. United States, 217 U.S. 539, 544
(1909) (“Statutes relieving from imprisonment for debt were not intended to take
away the right to enforce criminal statutes and punish wrongful embezzlements or
conversions of money. . . . Such laws are rather intended to prevent the commitment
of debtors to prison for liabilities arising upon their contracts.”) (citations omitted)).
The judgment is reversed, and the case is remanded to the district court with
directions that the indictment be dismissed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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