Big Eagle, former Crow Creek chairman, loses appeal in bribery case
FORT THOMPSON -- A former Crow Creek Sioux tribal chairman convicted in a bribery and kickback scheme has lost his appeal.
In a judgment filed Thursday, the U.S. Eighth Circuit Court of Appeals affirmed the conviction of Duane Big Eagle, who was found guilty by a federal jury in August 2011 of one count of bribery and two counts of conspiracy to bribe a tribal official.
The conviction stemmed from a scheme in which Big Eagle and several other tribal officials solicited and accepted kickbacks from construction contractors the tribe hired to repair the Crow Creek Sioux Tribal School after it was damaged by fire in 2005.
Big Eagle was sentenced to three years in prison, but he and his attorney, Dana Hanna, of Rapid City, appealed the conviction based on certain evidence they argued should not have been admitted during the trial.
Both sides submitted briefs and then presented oral arguments to the appeals court Oct. 19.
Hanna's brief claims evidence of other conspiracies Big Eagle may have been involved in, but was not charged with in the indictment, should not have been allowed. The contractors named in Big Eagle's indictment are Royal Kutz and Archie Bauman, but evidence of other kickbacks was discussed during the trial.
The appeals court rejected the claim and found the testimony regarding uncharged kickbacks was "necessary to explain the relationship, motives and scheme," among Big Eagle, other tribal officials and the contractors paying kickbacks, the court's opinion says.
Additional testimony about a meeting between Big Eagle and another contractor involved in the kickback scheme, Craig McClatchey, was found not to have harmed Big Eagle enough to warrant a reversal of his conviction, the opinion says.
Big Eagle met McClatchey at a restaurant in Pierre, while McClatchey was meeting with Crow Creek Tribal School Administrator Scott Raue and another contractor, Rick Hahn, both of whom were also involved in the scheme.
"Big Eagle said 'hi,' and then walked around the lunch table to stand directly behind McClatchey's (11-year-old) daughter, facing McClatchey. Big Eagle put his hands on McClatchey's daughter's shoulders, looked McClatchey directly in the eyes and said 'you're going to play ball with us, aren't you, Craig?'" the opinion says.
Between June 2002 and April 2005, McClatchey paid Raue between $80,000 and $120,000 in kickbacks, and Raue testified he gave money to Big Eagle "on way more than two occasions," the opinion says.
Big Eagle and his attorney did not object, ask for a cautionary jury instruction, or move for a mistrial when the evidence of the meeting was presented at trial, the opinion says.
Big Eagle was Crow Creek Sioux Tribal chairman from 1978 to 1981, 1992 to 1998, 2002 to 2006 and 2001 to 2011. He resigned following his conviction.