United States of America v. Arlyn Ackley

1 On April 5, 2001, Ackley was sentenced to thirty months im-
prisonment and three years of supervised release on Counts II and
(continued...)
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1958
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
A RLYN A CKLEY ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00 CR 48—Charles N. Clevert, Judge.
____________
A RGUED J ANUARY 9, 2002—D ECIDED J ULY 18, 2002
____________
Before F LAUM , Chief Judge, H ARLINGTON W OOD , J R ., and
E ASTERBROOK , Circuit Judges.
H ARLINGTON W OOD , J R ., Circuit Judge. This case in-
volves a few Native Americans of the Sokagoan Chippewa
community near Mole Lake, Wisconsin. The defendant,
Arlyn Ackley, was tribal chairman from 1994 to 1997.
Ackley appeals his October 2000 conviction on Counts II
and III of a three-count indictment which charged theft
from a gaming establishment in violation of 18 U.S.C.
§§ 1167(b) and 2. 1 The district court granted the defend-

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2 No. 01-1958
1 (...continued)
III to run concurrently. He was ordered to pay $38,715.69
restitution and a $200 special assessment.
2 The tribe is a federally recognized Indian Tribal Organization
as defined in 18 U.S.C. § 1163, which provides that the term “In-
dian Tribal Organization” means “any tribe, band, or community
of Indians which is subject to the laws in the United States re-
lating to Indian affairs or any corporation, association or group
which is organized under such laws.”
ant’s motion for judgment of acquittal on Count I which
charged a conspiracy “to obstruct, purloin, willfully misap-
ply and take and carry away with the intent to steal ap-
proximately $38,715.69 belonging to Sokagoan Gaming
Enterprise, a gaming establishment operated by an Indian
tribe pursuant to an ordinance or resolution approved by
the National Indian Gaming Commission” in violation of 18
U.S.C. §§ 1167(b), 371, and 2.
BACKGROUND
The Sokagoan Chippewa Tribal Community (“the tribe”)
is governed by a tribal council made up of six members
elected by the tribe. 2 A tribal chairman is also elected by
the tribe. The government describes this position as “sim-
ilar to that of a governor of a state.” The gambling opera-
tions permitted to take place on the reservation are over-
seen by the Sokagoan Gaming Enterprise Corporation
(“SGEC”), which was run by a board appointed by the tribal
council.
Ackley was elected tribal chairman in 1994 and served for
about three years. The facts relating to the charged offenses
need only be briefly related. While tribal chairman, Ackley
did considerable traveling; approximately once a week he
went somewhere. There was testimony that Ackley traveled
both on behalf of the tribe and on behalf of the SGEC. The
financing of those trips is what is involved in these offenses.

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No. 01-1958 3
Tribal financial procedures permitted the tribal chairman
to request travel advances prior to traveling. Ackley, as
tribal chairman, was issued an SGEC credit card (“the trib-
al credit card”). The SGEC paid the credit card bills for the
tribal credit card issued in Ackley’s name. Ackley’s secre-
tary, who was also his niece, handled most of his travel
arrangements. Prior to a trip, his secretary used the tribal
credit card to make Ackley’s hotel reservations. She would
prepare and submit a travel advance form to the accounting
office for Ackley which set out his anticipated spending
on hotels and per diem expenses. The tribal comptroller
would then issue a check in that amount payable to Ackley.
After the completion of travel, Ackley was required under
tribal financial procedures to submit his receipts from the
trip, set forth his actual expenditures on a portion of the
travel advance form designated for reconciliations, and
return any unused portion of the advanced funds. Ackley
did nothing to meet these requirements. In addition, after
receiving travel advances for hotel room costs, Ackley
charged those expenses to his tribal credit card. The SGEC,
not Ackley, paid these credit card charges. It was an easy
way for Ackley to make money on his travels. The evidence
showed nineteen trips for which Ackley received a travel
advance for hotel expenses and then charged those expenses
to his tribal credit card. For those nineteen trips, Ackley
was given $14,420 in advance funds for travel expenses,
including $8,688 for anticipated hotel expenses. During
those trips, Ackley charged $14,817.53 in hotel expenses
to his tribal credit card. Counts II and III of the indict-
ment dealt with two of these trips. Count II charged Ackley
with knowingly retaining with intent to convert to his
own use $1,500 belonging to the SGEC in connection with
an October 28, 1995 trip to San Diego, California. Count III
charged the knowing retention with intent to convert
$1,800 in connection with a May 31, 1996 trip to Tulsa,
Oklahoma.

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4 No. 01-1958
Ackley also used his tribal credit card for personal ex-
penses and to obtain cash advances for gambling at the
nearby Menomonie Nation casino, a fact which Ackley ad-
mitted to an FBI Special Agent. A member of the tribal
council and several SGEC board members testified that
there was no agreement allowing Ackley to use the tribal
credit card for personal expenses or cash advances. Fur-
ther, early in his tribal chairmanship, Ackley had been ad-
vised in writing of his responsibilities about travel ad-
vances, but that advice was ignored which is why we are
here.
THE ISSUES
The first two issues as framed by Ackley in his brief are
as follows:
The District Court committed plain error by construc-
tively amending both charges in Counts Two and Three
of the indictment by: (1) instructing the jury on a theory
of guilt different than that alleged in the indictment;
and (2) by allowing the jury to deliberate the conspiracy
charge in Count One together with the substantive
charges in Counts Two and Three because the Court
deferred deciding Mr. Ackley’s motion for judgment of
acquittal as to the conspiracy charge until post-verdict,
at which time the District Court granted Mr. Ackley’s
motion and dismissed the conspiracy charge because of
insufficient evidence.
Ackley also challenges the sufficiency of the evidence to
support his convictions on Counts II and III.
First, it should be noted that Ackley did not object to the
jury instructions and, in fact, his attorney affirmatively ap-
proved all of the instructions, so any claimed error was
waived. See United States v. Cusimano, 148 F.3d 824, 828
(7th Cir. 1998). In the absence of an objection in the district

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No. 01-1958 5
court, we review for plain error, id., and will reverse only
when the error “seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 732 (1993) (internal quotations and
citations omitted). We find no plain error in the instruc-
tions. In cases involving constructive amendment of jury
instructions as claimed by Ackley, plain error occurs only
when the amendment constitutes a mistake so serious that
the defendant probably would have been acquitted but for
the mistake. Cusimano, 148 F.3d at 828. Ackley provides
no specific support for his assertion that he would have
been acquitted but for the alleged constructive amendment,
and given the strength of the evidence against him, he could
not. His claim of error fails.
Additionally, the district court did not err in withholding
its ruling on Ackley’s motion for judgment of acquittal on
Count I. Ackley did not request severance of Count I from
Counts II and III in the district court. Nor would severance
have been appropriate. It was all the same evidence, most
of which would have been admissible in any event, and the
district court clearly instructed the jury that each count and
the evidence relating to it had to be considered separately.
Ackley’s challenge to the sufficiency of the evidence re-
quires little attention. Viewed in the light most favorable
to the government, the record contains ample evidence
from which the jury could find guilt beyond a reasonable
doubt. See United States v. Thomas, 284 F.3d 746, 751 (7th
Cir. 2002). Ackley used legitimate business trips to steal
tribal money for his own purpose. It was not a one-time
event for him, but was a very reliable pattern Ackley know-
ingly used each time to enrich himself at tribal expense.
It was his own unique method of stealing. It was the
same as if he had slipped his hand into the pocket of the
tribe’s comptroller and slipped out the tribe’s wallet.

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6 No. 01-1958
CONCLUSION
The defendant’s allegations of error are all without merit.
The record fully sustains the jury’s guilty verdict, not just
beyond a reasonable doubt, but beyond all doubt. The
district court cannot be faulted for its conduct of the trial.
The defendant’s appellate attorney did all he reasonably
could for the defendant in these circumstances.
The district court is affirmed in all respects.
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-18-02

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