Criminal – Bribery – Hobbs Act

Where two defendants were convicted of federal program bribery in violation of 18 USC §666, those convictions must be reversed because the evidence does not show that the purpose of the bribery — to protect a contract between an architectural firm and the Mashpee Wampanoag Gaming Authority — constituted any “business” of the Mashpee Wampanoag Tribe.

“In 2020, a federal grand jury indicted David DeQuattro, an architect with Robinson Green Beretta Corp. (‘RGB’), and Cedric Cromwell, Chairman of the Mashpee Wampanoag Tribal Council (‘Council’) and President of the Mashpee Wampanoag Gaming Authority (‘Gaming Authority’). They were charged with various federal offenses based on Cromwell allegedly soliciting, and DeQuattro allegedly giving in returns, checks and other things of value to protect a contract between RGB and the Gaming Authority to build a casino on Mashpee Wampanoag Tribe-owned land.

“Following a jury trial in the United States District Court for the District of Massachusetts, DeQuattro was convicted of one count of federal-program bribery, in violation of 18 USC §666(a)(2), while Cromwell was convicted of two counts of federal program bribery, in violation of 18 USC §666(a)(1)(B). The jurors also found Cromwell guilty of three counts of Hobbs Act extortion and one count of conspiracy to commit Hobbs Act extortion. The District Court entered a judgment of acquittal on those Hobbs Act-related counts because it determined that the Hobbs Act did not clearly abrogate tribal immunity.

“In these consolidated appeals, DeQuattro and Cromwell challenge their §666 convictions, and the government challenges the judgment of acquittal. We reverse both the §666 convictions and the judgment of acquittal. …

“…DeQuattro and Cromwell are contending, without dispute by the government, that the sole ‘agent’ of a covered entity involved in the alleged bribery was Cromwell acting as Chairman of the Tribal Council in his role as ‘agent’ of the Tribe (an ‘Indian tribal government’) and not as President of the Gaming Authority in his role as ‘agent’ of the Gaming Authority (a mere ‘agency’ of that ‘government’). It is significant, too, that DeQuattro and Cromwell are then further contending, again without dispute by the government, that the only ‘business’ that occurred ‘in connection with’ the alleged corrupt conduct involving Cromwell as the Tribe’s ‘agent’ was the RGB contract. The result is that DeQuattro and Cromwell are necessarily contending that the evidence is not sufficient to show that the allegedly corrupt conduct occurred ‘in connection with’ the ‘business’ of the entity of which the person involved in that conduct is an agent. …

“…We therefore proceed to assess whether the evidence suffices to show that the RGB contract is ‘business’ of the Tribe, first by laying out DeQuattro and Cromwell’s case that the evidence does not do so, then by reviewing the evidence that the government identifies in arguing that the evidence does, and, finally, by explaining why we agree with DeQuattro and Cromwell rather than the government. …

“DeQuattro and Cromwell point out that the record makes clear that the Gaming Authority is a ‘legally separate’ entity from the Tribe. …

“…DeQuattro and Cromwell contend that the record is not sufficient to show that any of the Tribe’s funds — and thus any of the Tribe’s federal-program funds — would be put at risk by the Gaming Authority’s RGB contract. …

“…The government nevertheless contends that the record suffices to show that the Gaming Authority and the Tribe were intertwined to an extent that allows a rational jury to find beyond a reasonable doubt that the contract between RGB and the Gaming Authority ‘constituted any ‘business’ of the Tribe.’ …

“…We are not persuaded, though, that the ties are sufficient to show that the RGB contract is ‘business’ of the Tribe rather than only of the Gaming Authority itself. … The evidence in the record shows, for example, that the Gaming Authority receives almost all of its funding from a third party entity and not the Tribe. In addition, as far as the record shows, the Gaming Authority entered the RGB contract pursuant to the ‘exclusive’ powers that it had been given by the Tribe, rather than at the direction of the Tribe. …

“For all these reasons, we conclude that the §666 convictions must be reversed. …

“We move on to the government’s cross-appeal, in which the government argues that the District Court erred in granting Cromwell’s motion for judgment of acquittal on his Hobbs Act convictions. …

“…The District Court explained that the Hobbs Act does not apply to tribal officials absent a clear statement in the statute abrogating tribal sovereign immunity.

“As the government notes, however, we and other circuits have long ‘recognized the United States as a superior sovereign from whose suits the tribes enjoy no sovereign immunity.‘ In re Grand Jury Proceedings744 F.3d 211, 219 (1st Cir. 2014) (collecting cases). Thus, the government is plainly right that the District Court erred in granting Cromwell’s motion for judgment of acquittal as to these counts, because there is no tribal immunity here that Congress needed to abrogate clearly. …

“DeQuattro’s and Cromwell’s convictions for federal program bribery in violation of 18 USC §666 are reversed. The District Court’s grant of Cromwell’s motion for judgment of acquittal on his Hobbs Act convictions is reversed, and the case is remanded for further proceedings consistent with this opinion.”

United States v. DeQuattro (Lawyers Weekly No. 01-215-24) (49 pages) (Barron, CJ) Appealed from a decision by Woodlock, J., in the US District Court for the District of Massachusetts. Martin G. Weinberg, with whom Kimberly Homan and Michael Pabian were on brief, for David DeQuattro; Robert F. Hennessy, with whom Schnipper Hennessy, PC was on brief, for Cedric Cromwell; Karen L. Eisenstadt, with whom Joshua S. Levy was on brief, for the United States (Docket Nos. 23-1115, 23-1116, 23-1138 and 23-1139) (Sept. 27, 2024).

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