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United States v. Webster-Valentino

United States District Court, D. Nebraska

February 6, 2018

UNITED STATES OF AMERICA, Plaintiffs,
v.
JESSICA WEBSTER-VALENTINO; BARBARA FREEMONT; AMEN SHERIDAN; RODNEY MORRIS; DORAN MORRIS, JR.; FORREST ALDRICH; MITCHELL PARKER; TILLIE ALDRICH; and JEFF MILLER, Defendants.

          MEMORANDUM AND ORDER

          Robert F. Rossiter, yJr. United States District Judge

         This matter is before the Court on a multitude of filings. Defendants Jessica Webster-Valentino (“Webster-Valentino”), Barbara Freemont (“Freemont”), Amen Sheridan (“Sheridan”), Rodney Morris (“Morris”), Doran Morris, Jr. (“Morris, Jr.”), Forrest Aldrich (“F. Aldrich”), Mitchell Parker (“Parker”), Tillie Aldrich (“T. Aldrich”), and Jeff Miller (“Miller” and collectively, “defendants”) have moved to (1) sever their trials (Filing Nos. 155, 159, 165, 167, 171, 172, 177, 181, and 184), (2) dismiss various counts of the Indictment on multiplicity grounds (Filing Nos. 157, 163, 168, 169, 175, 179, 182, 186, and 189), and (3) dismiss the Indictment for lack of federal jurisdiction (Filing Nos. 161 and 183).

         The magistrate judge[1] issued an Order denying the motions to sever in part and granting them in part (Filing No. 211), and recommended (Filing Nos. 209 and 210) the Court deny the various motions to dismiss.

         The defendants, except for Freemont and Webster-Valentino, jointly and individually objected (Filing Nos. 218, 220, 221, 223, 225, and 227) to the partial denial of severance. The defendants jointly objected (Filing No. 216) to the recommendation to deny the motions to dismiss the Indictment for lack of federal jurisdiction. No defendant objected to the recommendation to deny the motions to dismiss various counts of the Indictment on multiplicity grounds.

         For the reasons stated below, the objections to the magistrate judge's recommendations and Order are overruled, the findings and recommendations of the magistrate judge are accepted, and the defendants' motions to dismiss are denied.

         I. BACKGROUND

         “[I]n considering a motion to dismiss an indictment, ‘we accept the government's allegations as true, without reference to allegations outside the indicting document.'” United States v. Birbragher, 603 F.3d 478, 481 (8th Cir. 2010) (quoting United States v. Farm & Home Sav. Ass'n, 932 F.2d 1256, 1259 n.3 (8th Cir. 1991)).

         A. The Parties

         The Omaha Tribe of Nebraska (“Omaha Tribe”) is a federally recognized Indian tribe located in the District of Nebraska and is governed by a tribal council elected by members of the tribe. At the time of the alleged offenses, the tribal council consisted of a Chairman (Sheridan), Vice-Chairman (Morris, Jr.), Secretary (F. Aldrich), Treasurer (Miller), and three general members (Morris, T. Aldrich, and Parker) (collectively, “tribal-council defendants”). Webster-Valentino served as the Administrative Officer of the Carl T. Curtis Health Education Center (“Curtis Center”), and Freemont was employed in the Finance Department of the Omaha Tribe (collectively, “administrative defendants”).

         B. The Curtis Center

         The Indian Health Services (“IHS”) is an agency within the United States Department of Health and Human Services. The IHS provides funding to the Omaha Tribe for various programs pursuant to the Indian Self-Determination and Education Assistance Act (“ISDEAA”), 25 U.S.C. 450 et seq. Because the ISDEAA was enacted as Public Law 93-638, contracts between the IHS and various tribes pursuant to the ISDEAA are referred to as 638 contracts.

         The Curtis Center is located on the Omaha Indian Reservation. The Curtis Center received some of its funding from a 638 contract and also billed insurance companies and Medicaid for services rendered. The IHS contract placed conditions on the use of the funds by the Omaha Tribe. Funds received under the 638 contract were deposited into an account at Charter West National Bank. The account was known as “checkbook 29” and was used to pay the Curtis Center's expenses.

         Before a tribal program expended any funds, a Purchase Requisition form would be prepared and submitted to the Finance Department. The form would identify the entities to receive the payment, the amount, the account the funds would come from, and, frequently, the justification for the payment.[2]

         Between 1995 and 2011, IHS entered into 638 contracts with various tribes, but Congress did not appropriate enough funds to pay the contracts in full. IHS developed a procedure whereby it paid a percentage of each contract. In 2012, the United States Supreme Court determined the IHS must pay all of the 638 contracts in full. Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 201 (2012). The Omaha Tribe filed claims for reimbursement in 2005 for the contract years 1995 through 2005, and in 2012 for the contract years 2006 through 2011. The IHS informed the Omaha Tribe it had received the claims but expressly indicated its response was not an acknowledgement of the validity of the claims. The claims were ultimately settled and paid in 2015.

         C. Alleged Criminal Activity

         At some time after the Omaha Tribe filed its claim in 2012, Webster-Valentino and Freemont proposed bonuses for individuals who had worked on submitting the claim. On October 16, 2012, Webster-Valentino emailed Freemont three different proposals for bonus payments for the defendants. Freemont responded with the amount she preferred and suggested increasing the amount for the members of the tribal council to ease approval. Webster-Valentino confirmed the changes, increasing the proposed tribal-council bonuses from $8, 936.29 to $13, 404.44 per council member. Webster-Valentino also suggested the best source for the bonuses would be the contract carryover funds from the Curtis Center.

         On October 17, Freemont emailed Webster-Valentino, telling her to send a requisition form to Miller for approval. Miller signed and submitted a purchase requisition form authorizing the bonus payments the same day. Sheridan and F. Aldrich signed a check from checkbook 29 payable to Morris, and Morris and F. Aldrich signed a check from checkbook 29 payable to Sheridan. On October 18, Freemont cashed a $7, 000 check from checkbook 29.

         On October 23, Freemont sent a letter to Miller in support of the bonus request. On October 25, Morris and F. Aldrich gave Freemont and Webster-Valentino written approval to their proposal of the bonus payments. Webster-Valentino then cashed a $7, 000 check from checkbook 29. On October 26, Webster-Valentino cashed an $82, 362 check from checkbook 29. On October 29, Freemont cashed an $82, 362.92 check from checkbook 29.

         On November 5, at a council meeting, Morris made and F. Aldrich seconded a motion to approve Freemont's request to pay a percentage of the IHS settlement to members of the tribal council and other employees. Morris, F. Aldrich, Parker, Miller, and T. Aldrich[3] voted to approve the motion.[4]

         T. Aldrich made and F. Aldrich seconded a motion to pay $7, 500 apiece to past tribal-council members dating back to 1994. Morris, Morris, Jr., F. Aldrich, Parker, T. Aldrich, and Miller[5] voted to approve the motion. Morris, Jr., Parker, T. ...


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