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United States v. McGovern

United States District Court, D. Montana, Great Falls Division

February 9, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
KEVIN DAVID McGOVERN and CMG CONSTRUCTION, INC., Defendants.

          ORDER ON DEFENDANTS' MOTION FOR NEW TRIAL

          Brian Morris United States District Court Judge

         Defendants 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 rebuttal.

         BACKGROUND

         A jury 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.)

         ANALYSIS

         a. Constructive Amendment of Indictment

         McGovern 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.

         McGovern 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.

         The 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.

         McGovern 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.

         The 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.)

         The 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. Id.

         The 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 Indictment.

         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 ...


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