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Saturday, December 9, 2023
Courthouse News Service
Saturday, December 9, 2023 | Back issues
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Conviction Stands|for Fraud on Blackfeet

(CN) - Citing evidence of a professor's role in a plan to steal from the Blackfeet tribe, the Ninth Circuit refused Wednesday to overturn his conviction based on a jury-instruction error.

Last year, Gary Conti was convicted of conspiracy to defraud the United States, in addition to 26 other counts. Conti and his co-conspirators "stole or helped steal millions of dollars in grant funding that otherwise could have gone to provide mental health and substance abuse treatment for Blackfeet Indian youth," according to the ruling.

The scheme was carried out through the tribe's federally funded Po'Ka Project, the Federal Bureau of Investigation said last year. The agency said in a press release that conspirators inflated in-kind contribution numbers and embezzled from the program.

At Conti's trial, jury instructions for the conspiracy to defraud the United States charge did not reference the essential element of "deceitful or dishonest" conduct, the ruling states. Conti argued that the omission allowed the jury to convict him of the charge without finding an essential element.

But the Ninth Circuit upheld Conti's conspiracy to defraud conviction Wednesday.

It ruled that a 1993 decision, United States vs. Caldwell - which held that failure to instruct a jury on an essential crime element is per se prejudicial - is overruled by 1999's Neder vs. United States, which does not allow a jury instruction error to require automatic reversal.

The San Francisco-based appeals court found that the lower court's jury instructions that lacked the element of "deceitful or dishonest" conduct were a mistake, but held that they did not rise to the level of plain error because the federal government showed evidence of deceit and dishonesty.

The government's evidence included emails discussing the scheme and witness testimony about fraudulent invoices, according to the ruling.

"We hold that the prosecution adequately proved the missing element of the crime, and that there is not a 'reasonable probability' that the error in jury instructions affected the outcome," Judge Ronald Gould wrote for a three-judge panel. "We conclude that there was no plain error affecting Conti's substantial rights."

Conti was a former Oklahoma State University professor, according to the FBI. In October 2014, he was sentenced to five years in prison and ordered to pay $1.7 million in restitution.

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