United States v. Livingston

The location of an establishment is not an element of theft by an officer of a gaming establishment on Indian lands.

Jeff Livingston ("Livingston") was a general manager of the Chukchansi Gold Resort and Casino ("Chukchansi Gold"). He was indicted on two counts of theft by an officer of a gaming establishment on Indian lands pursuant to 18 U.S.C. § 1168(b). The first jury deadlocked. Livingston was indicted with an additional count of theft by an officer of a gaming establishment on Indian lands and six counts of mail fraud by superseding indictment a year later. The second jury convicted on all counts. Livingston appealed his convictions on the grounds that the government did not prove the gaming establishment is actually located on Indian lands and because this purported element of the offense was not alleged in the indictment or included in the jury instructions, his conviction must be reversed. Livingston also argued that the indictment did not adequately allege mail fraud and that the jury instructions did not correctly define "intent to defraud." Finally, Livingston argued the district court erred by admitting evidence of prior acts pursuant to Fed. R. Evid. 404(b). The Ninth Circuit held that the location of the gaming establishment is not an element of § 1168(b), "because the statute itself is unambiguous, its title is immaterial", and "[u]nless the plain language of a statute leads to an absurd or unconstitutional result, the court's function is to enforce the statute according to its terms." The panel also held that "[T]he test of sufficiency of the indictment is not whether it could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards." When "read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied" the indictment sufficiently alleged the elements of mail fraud and because the intent to cause pecuniary harm is not required in jury instructions for mail fraud the district court did not err in its instruction. The panel also held that based on testimony at trial that Livingston used a Chukchsani Gold credit card to purchase two items and did not purchase them for the casino; the district court correctly admitted prior acts evidence pursuant to Fed. R. Evid. 404(b). AFFIRMED.