United States District Court, D. Montana, Great Falls Division
ORDER ON DEFENDANTS' MOTION FOR NEW
Morris United States District Court Judge
Kevin David McGovern and CMG Construction, Inc.
(“McGovern”) have moved for a new trial under
Fed. R. Crim. P. Rule 33. (Doc. 83.) McGovern alleges the
following bases for a new trial: the government
constructively amended the Indictment; the government
violated the Court's Pretrial Order regarding the use of
MT Waterworks evidence; the Court denied the Defendants the
right to present a full defense; and the government made an
allegedly improper and prejudicial comment during closing
convicted McGovern on November 10, 2016 of Count 1:
Conspiracy to Defraud the United States and the Chippewa Cree
Tribe; Count 2: Scheme to Defraud the United States and
Chippewa Cree Tribe/Wire; and Count 3: Bribery of an Indian
Tribal Government Official. (Doc. 62.) McGovern previously
had served as the President and a principal owner of MT
Waterworks, LLC (“MT Waterworks”), a company that
pleaded guilty in 2016 to a Scheme to Defraud the Chippewa
Cree Tribe/False Claim to Native American Preference and
False and Fraudulent Statements Made to the United States.
(Doc. 94 in CR-16-37-GF-BMM.)
Constructive Amendment of Indictment
asserts that the government constructively amended the
Indictment by arguing during trial that MT Waterworks had
facilitated bribes from McGovern to Tony Belcourt. (Doc. 84
at 19.) McGovern specifically argues that evidence the
government offered to prove (1) the purpose of MT Waterworks,
(2) the $91, 800 distribution to Tony Belcourt from MT
Waterworks, and (3) the buyout of Tony Belcourt impermissibly
amended the Indictment.
argues that the government offered this evidence as direct
evidence of guilt for conduct not alleged in the Indictment.
McGovern further alleges that the transactions between MT
Waterworks and Tony Belcourt that were offered as evidence of
a bribery scheme by the government fell outside of the
relevant time period stated in the Indictment. Id.
government counters that McGovern conflates a variance of the
Indictment with an amendment of the Indictment. (Doc. 89 at
4-5.) An amendment of the Indictment takes place “when
the charging terms of the indictment are altered, either
literally or in effect . . . .” Doc. 89 at 4, citing
United States v. Ward, 747 F.3d 1184, 1189 (9th Cir.
2014). A variance occurs, however, when the government and/or
the Court leave the charging terms unaltered, but present
evidence to prove up conduct “materially different from
[that] alleged in the indictment.” Doc. 89 at 5, citing
Ward, 747 F.3d at 1189-90. A constructive amendment
requires automatic reversal, while a variance “is only
grounds for reversal if [it] prejudices the substantial
rights of the defendant.” Id.
claims that the Indictment charges McGovern only with the
$50, 000 loan (alleged bribe) to Tony Belcourt and the $25,
000 donation (alleged bribe) to the tribal events committee.
(Doc. 84 at 8.) McGovern contends, therefore, that the MT
Waterworks evidence offered by the government as direct
evidence of bribes to Belcourt constituted a constructive
amendment of the Indictment.
government argues that neither it nor the Court altered the
charging terms of the Indictment. The government offers in
support the undisputed fact that McGovern's counsel
agreed, and failed to object, to the jury instructions that
incorporated the exact language of the Indictment. (Doc. 89
at 5.) The government was also the only party to refer to the
specific language of the Indictment in its closing arguments.
(Doc. 82 at 267-270, 292.)
government also distinguishes two cases cited by
McGovern-Choy and Stirone. The government
contends that the Court altered the charging terms of the
Indictment in both cases through jury instructions. Doc. 89
at 6, citing Stirone v. United States, 361 U.S. 212,
214 (1960); United States v. Choy, 309 F.3d 602, 606
(9th Cir. 2002)., The Court in Stirone instructed
the jury that it could find the defendant guilty of
obstruction of interstate commerce based on the
defendant's transportation of sand or steel across state
lines. Stirone, 361 U.S. at 213-14. The indictment
charged the defendant only with having transported sand
across state lines. Id. The Court in Choy
provided a clarifying instruction during jury deliberations
that supported the government's unconventional bribery
theory. Choy, 309 F.3d at 606-07. The Court
determined that the combination of the government's
unconventional theory and the Court's instruction had
culminated in a prejudicial variance of the Indictment.
Court agrees with the government's position. The jury
instructions simply incorporated the language of the
Indictment. McGovern failed to object to the jury
instructions that incorporated language of the Indictment.
Fed. R. Crim. P. 30. The government exactly recited the
Indictment charging language in its closing argument.
McGovern has failed to show that the government amended the
government responds to the claim of a variance by contending
that Count 1 and Count 2 of the Indictment encompass the MT
Waterworks evidence that it offered at trial. (Doc. 89 at 7.)
The government quotes from the Indictment in stating that
Count 1 and Count 2 encompass all financial favors from
McGovern to tribal officials. Count 1 includes in the object
of the conspiracy “payments, gratuities, loans,
donations, or other financial favors” that McGovern
gave to tribal officials. (Doc. 89 at 7, citing Doc. 1.)
Count 2 ...