
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1811                                    UNITED STATES,                                      Appellee,                                          v.                                    FRANCIS BOOTS,                                Defendant, Appellant.                                 ____________________        No. 94-1812                                    UNITED STATES,                                      Appellee,                                          v.                                     ELLWYN COOK,                                Defendant, Appellant.                                   ________________        No. 94-1813                                    UNITED STATES,                                      Appellee,                                          v.                                    DEWEY LAZORE,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                      ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Robert A. Costantino, for appellant Francis Boots.            ____________________            Ronald Cohen, for appellant Ellwyn Cook.            ____________            Stephen R. Kaplan, for appellant Dewey Lazore.            _________________            Margaret D. McGaughey,  with whom Jay P. McCloskey, United  States            _____________________             ________________        Attorney, was on brief for appellee.                                 ____________________                                    March 29, 1996                                 ____________________                      CAMPBELL,   Senior  Circuit   Judge.      In   this                                  _______________________            consolidated  appeal,  defendants-appellants  Francis  Boots,            Ellwyn Cook, and Dewey Lazore challenge their convictions for            conspiracy,  in violation of 18 U.S.C.   371, to commit three            offenses, and  their convictions of the substantive offenses:            1)  to devise  a  scheme  or  artifice  using  the  wires  in            interstate  commerce with  intent to  defraud Canada  and the            Province of Nova Scotia of excise duties and tax revenues, in            violation of  18  U.S.C.    1343; 2)  to devise  a scheme  or            artifice  to  deprive  the  residents  of  the  Passamaquoddy            Reservation in Maine  of the honest services of  their police            chief, in violation of 18 U.S.C.     1343 and 1346; and 3) to            travel interstate  with the  intent to facilitate  bribery, a            crime  under Maine  state law,  in violation  of 18  U.S.C.              1952.   Judgment was entered  in the  United States  District            Court for the District of Maine following a jury trial.            I. Facts            I. Facts                      Construed  in  the  light  most  favorable  to  the            government,  the evidence  indicates that  between April  and            November 1992, defendants took part  in a scheme to transport            tobacco  from a  Native American  reservation in  upstate New            York ("Akwasasne") into New Brunswick, Canada, without paying            the taxes  and excise duties  levied upon the  importation of            tobacco  by  Canadian  laws.   The  tobacco  was  transported                                         -3-                                          3            surreptitiously   into   Canada  through   the  Passamaquoddy            Reservation  in  Pleasant  Point,  Maine,  bypassing  customs            checkpoints at the Canadian border.                        At  the trial,  Passamaquoddy Tribe  member Anthony            Stanley testified that on  April 15 he was called  to discuss            some  tobacco business  by  Beverly Pierro,  a friend  of his            friend, Francis  Boots.   Later that day,  Stanley approached            his  friend Frederick Moore, who was then serving as chief of            police of  the Passamaquoddy Tribe ("the  Tribe") at Pleasant            Point.  Stanley  told Moore that  two Mohawks from  Akwasasne            were  in Calais,  Maine  and wanted  to  meet with  him  that            evening  to  discuss  "mov[ing]  tobacco."   Moore  (who  was            familiar with  Akwasasne from having spent  time there twelve            years earlier at an  Indian solidarity demonstration1) agreed            to meet.  However, unknown to Stanley, Moore then contacted a            law enforcement officer at the Bureau of Indian Affairs (BIA)            for  advice and  received  a go-ahead  to  see what  the  two            Mohawks wanted.                      The four -- Stanley, Moore, Cook, and Lazore -- met            that evening at a motel.  It could be found from the evidence            that Cook and  Lazore knew  that Moore was  a police  chief.2                                            ____________________            1.  The terms "Native  American," "Indian," and  "aboriginal"            used  herein  are  taken  from  the  defendants'  briefs  and            testimony.            2.   Stanley testified that when Moore asked in their initial            phone call whether the  two knew that he was  a police chief,            Stanley said  yes.    Moore testified  that  at  the  evening                                         -4-                                          4            The two said that they wanted to bring tobacco from Akwasasne            to  Passamaquoddy and sell it to Moore and Stanley, who would            profit by selling it to established markets in New Brunswick,            Canada.   Moore declined to purchase their  tobacco, but said            he would  listen further  to their  objectives and  the price            they would pay for his involvement.                        Cook  explained  that  the  aim  was  to  transport            tobacco "unmolested by either government."  He indicated that            they could not transport the tobacco themselves because their            names  were  known.    The  group proceeded  to  discuss  law            enforcement  efforts  on  the  reservation,  possible  border            crosspoints,  a  storage  place  for  the  tobacco,  and  the            potential  for  growth  in  their  trading  activities,  with            Moore's  help and his recruitment of others.  Cook offered to            pay  Moore $20 per case  of tobacco transported.   Moore said            that he would  think about  the proposal and  reply within  a            week.  At the end  of the meeting, he was given  some tobacco            which he split with Stanley.                                            ____________________            meeting he was not in uniform, but was wearing a baseball hat            that had the insignia of the Pleasant Point Police Department            on it.   He admitted  that the two defendants never stated at            the meeting that they  were approaching him because he  was a            police  chief.  However, Moore testified that he told them he            was  armed and  was  a  cop.    The  four  also  specifically            discussed law enforcement on  the reservation, in response to            Lazore's inquiry about whether they had anything to fear from            police  officers.   The  following day,  Lazore and  Cook saw            Moore  when he was in uniform in his police cruiser and waved            to him from their car.                                         -5-                                          5                      Moore updated his contact  at BIA and the  next day            agreed  to   work  undercover  for  the   Federal  Bureau  of            Investigation (FBI).  The following  week he went with agents            of the FBI and  Royal Canadian Mounted Police (RCMP)  to view            possible offloading  sites near  St. Andrews, New  Brunswick,            Canada.  Moore took Stanley to some  of the same places later            in the month.                      Defendants  Cook  and Lazore  next met  with Moore,            Stanley, Pierro,  and her  boyfriend, Jake Boots  (brother of            defendant, Francis Boots) on April 28,  1992.  They discussed            navigation routes and  law enforcement concerns,  among other            matters.   Moore told the  group that  he had  access to  the            schedules and  communications of most of  the law enforcement            agencies.  They met again the next day, and Moore took Pierro            and Jake Boots by boat from the Passamaquoddy  Reservation to            the Canadian shore while explaining points  about navigation.                      The  first  tobacco delivery  was  made  on May  2.            Defendants Cook, Lazore, and Francis Boots, along with Pierro            and  Jake Boots,  brought 50  cases  of tobacco  to Stanley's            house,  where  they met  Moore.   Moore  supplied a  boat and            navigated it  to St.  Andrews  with Stanley  and Jake  Boots.            They  met two contacts who paid them $1000, which Stanley and            Moore split  (Moore giving his share to the FBI).  Moore made            similar  deliveries across the border accompanied by Stanley,                                         -6-                                          6            Jake  Boots, or both on May  11, May 16, and  June 27.  Moore            and Stanley  attempted  to deliver  tobacco  on June  1,  but            returned with  the cases  because their Canadian  contact did            not  show.  Moore delivered tobacco on June 9, accompanied by            an FBI and  border agent.   No deliveries  were made  between            July  and November due to the incarceration of a key contact,            Stanley  Johnson.  Moore and  Jake Boots, assisted by Pierro,            made the last delivery on November 7.3                      Moore testified that, in all, almost 1850 kilograms            of  tobacco were  transferred  across the  Canadian  border.4            The  government's expert  on Canadian  taxes stated  that the            total  per kilogram tax on tobacco was $106.47 Canadian.5  He            inferred that  taxes had not been paid,  because the packages            were not stamped as is customarily  done.  The wire fraud and            conspiracy counts  in the indictment alleged  that wires were            used in furtherance  of a  scheme to defraud  Canada and  the            Province of Nova Scotia  of tobacco taxes due.   To establish            this  element,  the government  introduced  evidence of  four                                            ____________________            3.   Anthony Stanley, Beverly Pierro, Jake Boots, and Stanley            Johnson were also charged  with various offenses, and entered            guilty pleas during the trial.            4.    Omitting  the  June   9  transfer  by  Moore  and   law            enforcement  agents,   the   amount  transferred   was   1500            kilograms.            5.   This sum includes  an excise duty of $18.33,  excise tax            of $35.64, and a provincial excise tax of $52.50.                                         -7-                                          7            interstate telephone conversations  between Moore and  Pierro            from May 1992 through July 1992.                        During the period of tobacco deliveries, Moore  (at            the  FBI's request) did not  disclose his role  to the tribal            governor, who  supervised him.6  The  tribal governor learned            of  Moore's activity in late June, when Stanley brought it to            the  attention of the tribal council.  Moore was suspended on            June 25 without  pay and  was later dismissed  in August  for            neglect of  duty and insubordination.   He testified  that he            believed  the  dismissal  was not  a  result  of his  tobacco            trading activities, but rather related to an investigation of            the tribal governor.                      Boots  and  Cook  argued,  in  defense,  that  they            pursued the above activities  with a good faith belief  in an            aboriginal  right to trade tobacco freely  with Canada.  This            belief  was based  upon their  adherence, as  members  of the            Ganiengehaga Nation, to a  constitution called the "Great Law            of Peace," and on the fact that their reservation, Akwasasne,            includes lands in New  York State, Ontario, and Quebec.   The            two  defendants  testified  that they  recognized  neither  a            formal  border between  the United  States and  Canada nor  a            Canadian right  to tax the sacred product  of tobacco, though                                            ____________________            6.    For his  investigatory  work, Moore  received from  the            federal  government $350  per  week between  August and  mid-            December,  a   $25,000  payment  in   December,  and  various            expenses.                                         -8-                                          8            they  admitted  they were  aware that  Canada claimed  such a            right and  imposed such  imposts.  Boots  maintained that  he            believed  the  shipped tobacco  was  intended  for an  Indian            market in Canada.   He  further stated that  Moore was  hired            because of  his navigational  skills and  not because  of his            statusas thePassamaquoddy policechief. Lazore didnot testify.            II. Discussion            II. Discussion                      Defendants assert on appeal that the district court            erred  in the following ways:  1) in refusing  to dismiss the            indictment or grant  a judgment of  acquittal, on the  ground            that a "scheme to defraud" Canadian authorities of duties and            taxes is not cognizable  under the wire fraud statute;  2) in            finding the  Maine bribery statute, which  provided the basis            for the Travel  Act violation, applicable to  Moore as police            chief  of a  Native  American reservation;  3)  in denying  a            judgment of  acquittal on  the wire  fraud counts charging  a            scheme to  deprive Passamaquoddy Tribe members  of the honest            services  of their police chief, despite alleged interference            of the federal  statute with  tribal sovereignty;  and 4)  in            refusing  to include their  specific version of  a good faith            defense  in the  jury instructions.   They  claim that  their            convictions   of   conspiracy   and   independent   statutory                                         -9-                                          9            violations  must  be   reversed  because  of  these   errors.            Defendant Boots also challenges his sentence.7                      A. Wire Fraud:  Scheme  to Defraud Canada of Duties                      A. Wire Fraud:  Scheme  to Defraud Canada of Duties                      and Taxes                      and Taxes                      The indictment charged  a wire  fraud violation  in            the  conspiracy count  and four  independent counts  upon the            theory  that defendants  intended to  defraud Canada  and the            Province of Nova Scotia of tobacco duties and taxes, using or            causing  the wires  to be used  interstate in  furtherance of                                            ____________________            7.   Lazore argues that the district court erred in denying a            motion   to  dismiss   the  indictment   based  on   lack  of            jurisdiction to  prosecute Native Americans  for transporting            tobacco into Canada, a  right claimed to be protected  by the            Jay Treaty.   He  relies on  language in  Article III of  the            Treaty of  Amity, Commerce and Navigation  (1794) between the            United States and Great Britain, which provided:                        [N]or  shall the Indians  passing or repassing with                      their  own proper  goods  and  effects of  whatever                      nature,  pay  for  the  same  any  impost  or  duty                      whatever.    But goods  in  bales,  or other  large                      packages,  unusual  among  Indians,  shall  not  be                      considered as goods belonging bona fide to Indians.            The Jay  Treaty, Nov. 19,  1794, U.S.-Gr.Brit., 8  Stat. 116,            118.    The  government  has argued  persuasively  that  this            argument grounded in the Jay Treaty was waived by defendants'            failure to press it  sufficiently in the district court.   In            any event, we discern no error in the lower court proceedings            on  this ground.  See  generally Karnuth v.  United States ex                              ______________ _______     ________________            rel.  Albro,  279  U.S.  231, 239  (1929)  ("[T]he  privilege            ___________            accorded by article 3 is one created by the treaty, having no            obligatory existence apart from that instrument, .  . . .  It            is, in no sense, a vested right.  It is not  permanent in its            nature.    It  is  wholly  promissory  and  prospective,  and            necessarily  ceases to  operate in a  state of war.  . . .");            Akins v.  United States,  551 F.2d 1222,  1229-1230 (C.C.P.A.            _____     _____________            1977)  (duty exemption of Jay Treaty was abrogated by the War            of  1812, and  though  similar language  was incorporated  in            federal  tariff acts until 1897, upon repeal of that last act            no  such   language  preserving  the   right  was   reenacted            thereafter).                                         -10-                                          10            this  scheme.   The  relevant  telephone  communications took            place  between Pierro and Police  Chief Moore on  May 25, May            31,  June 7, and July  24, 1992.8   The government's evidence            supports  a reasonable  inference  that the  calls were  made            between Maine and New York, where Moore and Pierro resided.                      Defendants argue  that the district court  erred in            denying  their motion  to dismiss  based on  the government's            alleged failure  to  show a  proper  "scheme to  defraud"  as            section 1343 requires.9   Defendants insist, inter alia, that                                                         _____ ____            (1) they  made no affirmative  misrepresentation to  Canadian                              ___________            customs   authorities  relative  to   their  tobacco  trading            activities;  and  (2)  their  scheme had  as  its  object  no            protected property interest within the wire fraud statute.                                               ____________________            8.    Defendants need not personally use the wires as long as            such use was a  reasonably foreseeable part of the  scheme in            which they participated.  See United States v. Maze, 414 U.S.                                      ___ _____________    ____            395,  399 (1974); Pereira v.  United States, 347  U.S. 1, 8-9                              _______     _____________            (1954).            9.    The wire fraud statute provides:                      Whoever, having devised or intending  to devise any                      scheme  or artifice  to defraud,  or  for obtaining                      money or  property by means of  false or fraudulent                      pretenses, representations,  or promises, transmits                      or causes to be transmitted by means of wire  . . .                      communication  in  interstate or  foreign commerce,                      any writings, signs,  signals, pictures, or  sounds                      for  the  purpose  of  executing   such  scheme  or                      artifice,  shall  be  fined  under  this  title  or                      imprisoned  not more than five years, or both . . .                      .            18 U.S.C.  1343.                                                      -11-                                          11                      We turn first  to defendants'  insistence that  the            absence  of any  affirmative misrepresentation  -- such  as a                             ___________            false  customs   declaration  --  rendered   their  smuggling            activities non-fraudulent  for  wire  fraud  purposes.    The            government responds  that scheming to bypass Canadian customs            authorities  and not to declare the  tobacco was a sufficient            form of deceit  to meet the  requirements of section  1343.10            Cf.  United States  v. Brewer,  528 F.2d  492, 496  (4th Cir.            ___  _____________     ______            1975) (scheme  to sell cigarettes into  another state without            registering with tax officials  there, as required by Jenkins            Act, is mail fraud);  see also McEvoy Travel Bureau,  Inc. v.                                  ________ ___________________________            Heritage Travel,  Inc., 904 F.2d  786, 791 (1st  Cir.), cert.            ______________________                                  _____            denied,  498 U.S. 992 (1990) ("the scope of fraud under these            ______            [federal fraud]  statutes is  broader than common  law fraud,            and . . . no misrepresentation of fact is required").                        We  see  no  need,  however, to  decide  whether  a            smuggling  scheme   structured  like  the   instant  one,  if                                            ____________________            10.    Counts 1  and 18  through 21  charged that  defendants            devised a scheme                      in  violation  of Sections  236  &  240(1), of  the                      Excise  Act, Revised Statutes  of Canada, 1985, Ch.                      E-14 and amendments thereto;  Sections 155 & 160 of                      the Customs  Act, Revised Statutes  of Canada, 1985                      (2d Supp.)  Ch. 1; Section 25(1)(a)  of the Tobacco                      Tax Act, Ch.  470 of the  Revised Statutes of  Nova                      Scotia, 1989 and amendments thereto;  and Section 7                      of  the Health  Services Tax  Act, Ch.  198 of  the                      Revised Statutes of Nova Scotia, 1989.              Part II of the Customs Act imposes an obligation on importers            to declare dutiable goods and pay any taxes or duties imposed            by other laws relating to customs.                                         -12-                                          12            practiced upon, say, federal  or other authorities within the            United States,  would be  a fraudulent scheme  within section            1343.   Even  assuming  it would  be,  we face  the  separate            problem that the object of the scheme here was exclusively to            defraud a foreign government, rather than our own, of customs            and  tax revenues imposed under foreign law.  We believe this            added factor pushes defendants'  scheme beyond the parameters            of the frauds cognizable under section 1343.                      The  prosecution, relying  on cases  upholding wire            and  mail fraud  convictions  for schemes  to evade  domestic            taxes, argues that customs and tax revenues, even though owed            solely  to a  foreign  governmental body  under  laws of  the            latter's making,  constitute money and property  for purposes            of the wire  and mail  fraud statutes.11   See, e.g.,  United                                                       _________   ______            States  v. Dale, 991 F.2d  819, 849 (D.C.  Cir.) (federal tax            ______     ____            revenues), cert. denied,  114 S. Ct. 286  and 114 S.  Ct. 650                       ____________                   ___            (1993);  United States v.  Helmsley, 941  F.2d 71,  93-95 (2d                     _____________     ________            Cir. 1991)  (state income taxes), cert. denied, 502 U.S. 1091                                              ____________            (1992); United States v. Bucey, 876 F.2d 1297, 1309-1310 (7th                    _____________    _____                                            ____________________            11.    The Supreme Court has  held that only frauds affecting            the  government's interests  as  property holder  come within            section 1343, see Carpenter v. United States, 484 U.S. 19, 25                          ___ _________    _____________            (1987);  McNally  v. United  States,  483 U.S.  350,  358 n.8                     _______     ______________            (1987) (mail fraud), although Congress has since criminalized            schemes to deprive another of  the intangible right to honest            services as well,  see 18 U.S.C.    1346 (effective  November                               ___            18, 1988), infra.  The Court has analyzed mail and wire fraud                       _____            offenses  similarly, because  they  share the  same  relevant            statutory language.  See Carpenter, 484 U.S. at 25 n.6.                                 ___ _________                                         -13-                                          13            Cir.)  (federal income  taxes), cert.  denied, 493  U.S. 1004                                            _____________            (1989);  see also  Otto G.  Obermaier  & Robert  G. Morvillo,                     ________            White  Collar Crime   9.02[1]  at 9-30 n.  64 (1994) (federal            ___________________            and state tax cases).                          But  none  of  the prosecution's  cited  wire fraud            cases have involved a scheme to deprive a  foreign government                                                       _______            of its own  taxes and similar  exactions.12  The  prosecution            urges  that section 1343  should apply,  because it  does not                                            ____________________              12.  A somewhat  similar  factual pattern  arose, but  went            undecided,  in this circuit in  a civil context  in Nodine v.                                                                ______            Textron, Inc., 819 F.2d 347 (1st Cir. 1987).              _____________                      The case  that is perhaps  most factually analogous            to  the present -- though not particularly helpful here -- is            United  States v.  Gafyczk, 847  F.2d 685  (11th  Cir. 1988),            ______________     _______            which involved a scheme to  import cigarettes into the United            States and to export them, repackaged with other materials in            mislabeled containers, into Italy without paying  duties owed            there.   The charges there included violations of 49 U.S.C.              121  (falsely  making a  bill of  lading),  18 U.S.C.    1001            (making a false statement in a matter within the jurisdiction            of  a U.S. government agency or  department [the U.S. Customs            Service]), and  18 U.S.C.    371 (conspiring  to defraud  the            United States).   Neither  wire nor  mail fraud was  charged;            however,  the   court  of   appeals  relied  on   McNally  in                                                              _______            interpreting the  "intent to defraud" element  of section 121            to require that the government assert a pecuniary or property            interest which was the target of  the fraud.  See id. at 689-                                                          ___ ___            690.   Defendants' convictions on these  counts were reversed            for failure to show such an interest.  See id.  ("It is clear                                                   ___ ___            that  such   a  deprivation   could  have  occurred   if  the                                          _____            appellants' actions had been even partially intended to evade            the payment of export duties or other levies properly owed to            the United  States.") (emphasis  supplied).  The  court added            that  "the fact that  the evidence may  well have established            the  appellants'  intent to  defraud  Italy is  of  no import                                                  _____            because  that nation is not  identified as the  object of the            effort to defraud  in violation  of 49 U.S.C.App.    121"  as            alleged in the indictment.   Id. at 690  (emphasis supplied).                                         ___            The  court expressed no opinion  as to whether  such a theory            would have been viable under section 121 (let alone under the            federal fraud statutes, to which section 121 was compared).                                         -14-                                          14            describe  any  particular  type  of  victim of  a  scheme  to            defraud.    It punishes  use of  the  wires in  interstate or            foreign commerce in furtherance of "any scheme or artifice to            defraud."  If  domestic tax fraud  falls under section  1343,            why  not foreign  revenue frauds  as well,  it is  contended.            Federal wire  prosecutions have been based  on frauds against            private  foreign  businesses  and individuals.    See,  e.g.,                                                              __________            United  States  v.  Lewis,  67  F.3d  225   (9th  Cir.  1995)            ______________      _____            (reversing wire  fraud conviction for  a scheme to  defraud a            foreign  bank  where the  jury instruction  did not  charge a            property interest as the target of the scheme); United States                                                            _____________            v. Van Cauwenberghe, 827 F.2d  424 (9th Cir. 1987) (affirming               ________________            wire fraud  conviction involving scheme to  defraud a Belgian            investment broker  and corporation),  cert. denied,  484 U.S.                                                  ____________            1042 (1988).                      However,  schemes  aimed  at  depriving  a  foreign            government of duties and  taxes are not the same  as domestic            tax  frauds, nor are they even the same as private commercial            frauds aimed at foreign business entities or individuals.  At            issue  is not only whether  "money or property,"  as such, is            being  targeted, but  more  importantly here,  the extent  to            which  constitutional  and  prudential considerations  factor            into  our  analysis.   Foreign  customs  and tax  frauds  are            intertwined  with enforcement  of  a foreign  sovereign's own            laws  and policies to raise and collect such revenues -- laws                                         -15-                                          15            with which  this country may  or may not  be in  sympathy and            over  which,  in  any  event,  we  have  no  authority.    In            recognition  of  this,  our  courts  have  traditionally been            reluctant  to enforce  foreign  revenue laws.   The  "revenue            rule" -- a firmly embedded principle of common law, traced to            an opinion by Lord Mansfield, Holman v. Johnson, 98 Eng. Rep.                                          ______    _______            1120  (K.B. 1775)  -- holds  that courts  generally  will not            enforce foreign tax judgments, just as they  will not enforce            foreign  criminal  judgments,   although  they  will  enforce            foreign   non-tax   civil  judgments   unless   due  process,            jurisdictional, or fundamental  public policy  considerations            interfere.   See Restatement  (Third) of Foreign  Relations                           ___            483  & n.1  (1987);  see  also  Banco  Nacional  de  Cuba  v.                                 _________  _________________________            Sabbatino, 376  U.S. 398, 448 (1964)  (White, J., dissenting)            _________            ("[O]ur courts customarily refuse  to enforce the revenue and            penal  laws of  a  foreign state,  since  no country  has  an            obligation to further the governmental interests of a foreign            sovereign.") (footnote  omitted); Her  Majesty  the Queen  in                                              ___________________________            Right of the Province of British  Columbia v. Gilbertson, 597            __________________________________________    __________            F.2d 1161, 1164-1165 (9th  Cir. 1979).  The rationale  of the            revenue  rule has  been  said to  be  that revenue  laws  are            positive  rather than  moral  law; they  directly affect  the            public  order of  another  country and  hence  should not  be            subject to judicial scrutiny by American courts; and  for our            courts  effectively to  pass on  such laws  raises  issues of                                         -16-                                          16            foreign relations which are assigned to and better handled by            the legislative and executive branches of government.                      Although this case does not require us to enforce a            foreign tax judgment  as such, upholding  defendants' section            1343   conviction   would   amount   functionally   to  penal            enforcement  of Canadian customs and tax laws.  The scheme to            defraud at issue -- proof of which is essential to conviction            -- had as its  sole object the violation of  Canadian revenue            laws.   To  convict, therefore,  the district court  and this            court must determine whether a violation of Canadian tax laws            was intended and, to the extent implemented, occurred.  In so            ruling,  our  courts  would   have  to  pass  on  defendants'            challenges to such laws  and any claims not to  have violated            or  intended  to violate  them.   Where  a domestic  court is            effectively  passing on  the  validity and  operation of  the            revenue  laws of  a foreign  country, the  important concerns            underlying the  revenue rule  are implicated.   Of particular            concern is  the principle  of noninterference by  the federal            courts in the legislative and executive branches' exercise of            their foreign policymaking powers.  National policy judgments            made  pursuant  to  that  authority could  be  undermined  if            federal courts  were to  give  general effect  to wire  fraud            prosecutions for schemes of this  type aimed at violating the            revenue  laws  of any  country.   It  is noteworthy  that the            federal statute  criminalizing the  smuggling  of goods  into                                         -17-                                          17            foreign  countries  punishes  such  activities  only  if  the            foreign government has  a reciprocal  law.  See  18 U.S.C.                                                           ___            546.  A decision to uphold the present convictions would have            the effect of licensing  prosecutions against persons who use            the  wires to  engage  in smuggling  schemes against  foreign            governments irrespective  of whether a  particular government            had the reciprocal arrangement called for in section 546.                      In  the case of Canada,  to be sure,  we cannot say            that  this specific legislative  judgment would be undermined            by  affirming  the instant  wire fraud  conviction.13   We do            not condone  defendants'  smuggling  activities,  nor  do  we            question  Canada's   revenue  laws  or  the  desirability  of            cooperation in respect to our mutual border.  But application            of the  wire fraud statute to a scheme of this type does not,            and cannot, turn upon our attitude towards Canada alone.  The            revenue rule has not risen or fallen over the centuries based            on  country-by-country judicial assessments  of the potential                                            ____________________            13.    The United States has a treaty with Canada to exchange            information   about  smuggling   across  the  border.     See                                                                      ___            Convention  to  Suppress Smuggling,  June 6,  1924, U.S.-Can.            (ratified  by Great Britain), 44  Stat. 2067.   Yet a cursory            search has failed  to make  it clear whether  a violation  of            Canadian revenue or tax laws would be grounds for extradition            of  the violator  to  Canadian authorities,  suggesting  some            doubt as to the degree of cooperation mutually promised.  See                                                                      ___            Treaty  on Extradition,  Dec. 3,  1971, U.S.-Can.,  27 U.S.T.            983.  We have not made a close examination into the extent of            Canada's reciprocal  arrangements  such as  are  contemplated            under 18 U.S.C.   546.  Even assuming Canada were to qualify,            we see nothing in the wire fraud statute that would  allow us            to limit  the statute  to wire frauds  practiced against  the            revenue laws of nations having reciprocal arrangements.                                         -18-                                          18            for  a  foreign  relations  conflict.    Courts  are  neither            equipped   nor  constitutionally   empowered  to   make  such            assessments.   Prosecutors, who operate  within the executive            branch,  might of course be expected not to pursue wire fraud            prosecutions based  on smuggling  schemes aimed at  blatantly            hostile countries, but whether  conduct is criminal cannot be            a  determination left  solely  to  prosecutorial  discretion.            Rather, the  longstanding rule instructs the  courts to leave            this  area  alone,  so  that the  legislative  and  executive            branches may exercise their authority and bargaining power to            deal   with  such  issues,   and  also  so   that  a  foreign            government's  revenue  laws  are not  subjected  to intrusive            scrutiny by the courts of this country.                       It is  true that the  existence of a  more specific            penal statute, such as the current anti-smuggling statute, 18            U.S.C.    546, would not  be deemed impliedly  to preempt the            general  federal   anti-fraud   statutes  if   effect   could            comfortably  be given to both.   See, e.g.,  United States v.                                             _________   _____________            Brien, 617 F.2d 299, 310 (1st Cir.) (holding that Commodities            _____            Futures Trading Act does not preempt or impliedly repeal wire            or  mail  fraud statutes  and  citing  related cases),  cert.                                                                    _____            denied,  446  U.S.  919  (1980);  Brewer,  528  F.2d  at  498            ______                            ______            ("[Defendant's] use of the mails to escape regulation added a            different  element and  a  new dimension  to  her failure  to            comply with the [Jenkins] Act.").  Effect, however, cannot be                                         -19-                                          19            given to section 1343 in these conditions without threatening            the  reciprocity  provision  in  section  546, and  offending            generally  the  salutary  principles underlying  the  revenue            rule.   If Congress, notwithstanding these inherent tensions,            had meant to  authorize the  courts to enforce  this kind  of            application  of the  wire  fraud statute,  we think  "it must            speak more clearly  than it has."  McNally,  483 U.S. at 360.                                               _______            Our  conclusion is further  supported by the  rule of lenity,            which  holds that the harsher  of two possible  readings of a            criminal  statute will  be  enforced only  when Congress  has            spoken clearly.  See id. at 359-360; Fasulo v. United States,                             ___ ___             ______    _____________            272  U.S. 620, 629 (1926) ("[B]efore one can be punished [for            mail fraud], it must be shown that his case is plainly within            the statute.").   We,  therefore, hold  that foreign  tax and            customs frauds, such as  the instant one, are not  schemes to            defraud  within  the  meaning   of  section  1343,  and  that            defendants'  substantive  convictions  of  wire  fraud  under            section  1343, based on the scheme to defraud Canada and Nova            Scotia of duties and taxes, must be reversed.                      Our  holding that it  was legal error  to apply the            wire fraud  statute to defendants' Canadian  smuggling scheme            requires us  to set aside the conspiracy  conviction under 18            U.S.C.   371 as well.  Jurors "are not  generally equipped to            determine whether a particular theory of conviction submitted            to them is contrary  to law," though they are  generally able                                         -20-                                          20            to analyze evidence and recognize a  theory that is factually            inadequate.    Griffin v.  United  States,  502  U.S. 46,  59                           _______     ______________            (1991); United States v. Nieves-Burgos, 62 F.3d 431 (1st Cir.                    _____________    _____________            1995) ("Griffin distinguishes  cases, like [Turner  v. United                    _______                             ______     ______            States, 396 U.S. 398  (1970)], which concern convictions that            ______            may have rested  on a  basis that  was not  supported by  the            evidence,  from those concerning convictions possibly resting            on an  invalid ground as a result of an error of law [such as            in  Yates v.  United  States, 354  U.S.  298 (1957)]).    The                _____     ______________            district  court instructed  the  jury that  it could  convict            under  section   371  if  the  government   proved  beyond  a            reasonable doubt that defendants conspired to commit at least            one  of  the  three  offenses  charged  as  objects  of   the            conspiracy.   Because it is  impossible to tell  which ground            the jury based the conspiracy conviction upon, the conviction            cannot stand.  See Yates, 354 U.S. at 312.                           ___ _____                      The government contends that even if the wire fraud            count falls,  the conspiracy  conviction  should be  affirmed            based  on  at least  one of  the  two other  objects alleged.            Since  the   jury  found  substantive  violations   of  those            statutes,  the  argument  goes,   we  should  infer  that  it            unanimously  found  beyond   a  reasonable  doubt  that   the            conspiratorial  agreement  extended,  with  respect   to  all            defendants, to at least one legally sufficient object.   This            contention might  be persuasive  where a district  court does                                         -21-                                          21            not give a "one-is-enough" charge, or  a special verdict form            is required of the jury, such that the reviewing court is not            speculating on  what the jury did  or did not decide.   Here,            however, it is  at least possible  that the jury did  not ask            itself whether the conspiratorial  agreement extended to  the            two valid  objects (interstate  travel with intent  to commit            bribery, and a  scheme to defraud another of honest services)            with  respect  to all  defendants,  instead  focusing on  the            overall  conspiratorial agreement  to transport  tobacco into            Canada without paying taxes and duties.  Cf. United States v.                                                     ___ _____________            Carman,  577 F.2d 556, 567-568 (9th Cir. 1978) ("If the jury,            ______            when considering  the conspiracy  count, focused only  on the            crime  embodied  in the  subsequently  overturned substantive            crime  conviction the  conspiracy conviction  also should  be            overturned. . . .  Criminal sanctions cannot rest on  what an            appellate  court  thinks the  jury  would have  done  had the            issues put to it been framed differently.");  see also United                                                          ________ ______            States v.  Palazzolo, 71  F.3d 1233  (6th  Cir. 1995)  (where            ______     _________            defendants were convicted of  substantive offenses that  were            also  objects  of  a  conspiracy,  and  district  court  gave            erroneous   instruction  on   one  offense,   court  reversed            conspiracy conviction because  "the verdict  lends itself  at            least to the  possibility that the jury  found the defendants            guilty only of conspiring  to violate" the legally inadequate            count);  United  States v.  Musacchia,  955 F.2d  3  (2d Cir.                     ______________     _________                                         -22-                                          22            1991).  Further,  the two legally  sufficient objects of  the            conspiracy  were  not  so  intricately  intertwined with  the            invalid wire fraud count that we can necessarily say that the            conspiracy  conviction  had a  legally  correct  basis.   Cf.                                                                      ___            United  States v. Huebner, 48 F.3d 376 (9th Cir.) ("Under the            ______________    _______            facts in this case,  it would not have been possible  for the            jury to have  found a  conspiracy to aid  and abet  attempted            [tax] evasion  without also  finding a conspiracy  to defraud            the United  States by  obstructing [tax]  collection.  . .  .            [T]here  could  be  no danger  that  the  jurors based  their            conspiracy  verdict on finding that the object was to aid and            abet attempted  evasion without also finding  that the object            was   to   defraud   the   United   States   by   obstructing            collection."),  cert. denied,  116  S. Ct.  71  (1994).   The                            ____________            conspiracy conviction  is vacated and that  count is remanded            for  further proceedings not  inconsistent with this opinion,            which  may, in  the prosecution's  discretion, include  a new            trial on a properly narrowed indictment.  See Yates, 354 U.S.                                                      ___ _____            at  327-328;  Palazzolo, 71  F.3d at  1238; United  States v.                          _________                     ______________            Ochs, 842 F.2d 515, 529 (1st Cir. 1988).            ____                      B. Maine  Bribery Statute as a  Basis for Violation                      B. Maine  Bribery Statute as a  Basis for Violation                      of the Travel Act                      of the Travel Act                      We  turn   next  to   the  substantive  counts   of            interstate travel to facilitate  bribery, a crime under Maine            law, in violation of 18 U.S.C.    1952 and 2.  The Interstate            Travel  Act  punishes  "[w]hoever  travels in  interstate  or                                         -23-                                          23            foreign commerce . . . with intent to . .  . promote, manage,            establish, carry  on,  or  facilitate  .  .  .  any  unlawful            activity,  and thereafter  performs  or attempts  to perform"            such  an act.  18 U.S.C.    1952(a).  Bribery in violation of            state law is an "unlawful activity" within section 1952.  See                                                                      ___            United States v. Arruda,  715 F.2d 671, 681 (1st  Cir. 1983).            _____________    ______            The Maine bribery statute, charged here, provides in relevant            part:                      1. A  person is guilty  of bribery in  official and                      political matters if:                      A.  He promises,  offers,  or  gives any  pecuniary                      benefit   to   another   with   the   intention  of                      influencing the other's action,  decision, opinion,                      recommendation,  .  .  .   or  other  exercise   of                      discretion as a public servant. . . .                                  ___________________            17-A M.R.S.A.    602(1)(A) (emphasis  supplied).   "Pecuniary            benefit"  means economic  gain, including money  or property.            Id.   602(2)(C).            ___                      Defendants were convicted  of traveling between New            York and Maine during the spring of 1992 with intent to carry            on  and facilitate the bribery  of Moore, whom  they knew was            the  police  chief  of  the  Passamaquoddy  Reservation,  and            thereafter  performing and  causing to  be performed  acts to            facilitate  bribery,  and aiding  and  abetting the  offense.            Evidence  was  presented  that  Cook and  Lazore  gave  Moore            tobacco  at the end  of their first  meeting on April  15 (at            which  he was offered payment for his involvement); Cook paid            Moore $1000  (Canadian) for  the tobacco  delivery on  May 2;                                         -24-                                          24            Boots  paid  Moore  $600 for  the  delivery  on  May 16;  and            defendants discussed with Moore concerns with law enforcement            on the  reservation and elsewhere which  might interfere with            their objectives.14                      Defendants challenge their  convictions for  Travel            Act violations on two principal grounds:  1) Moore, as police            chief of the Passamaquoddy  Indian Reservation, was not, they            argue,  a "public servant"  within the  meaning of  the Maine            bribery  statute, supra; and 2) even if a public servant, his                              _____            official duties did not include enforcing Canadian or federal            laws and  thus were not influenced.15   We do not  find merit            in either contention.                      "Public servant"  is defined in the  Maine criminal            code  as "any official officer  or employee of  any branch of            government and any  person participating  as juror,  advisor,            __________            consultant  or  otherwise,   in  performing  a   governmental                                             ____________________________                                            ____________________            14.     The  indictment  charged  that  Pierro  arranged  for            additional payments  totaling $3000 to Moore  between May and            mid-September  of 1992.    The record  indicates that  Cook's            original  offer of $20  per carton was  not precisely carried            out, as Moore and Stanley usually were to share the payments.            15.   Defendants also contend  that it was legally impossible            for Moore  to have been bribed  after June 25,  1992, when he            was suspended from office.  We agree with the government that            this claim  does not get  defendants far, since  the relevant            dates for the Travel  Act violations preceded his suspension.            Defendants have  not challenged  the Travel Act  charge other            than to attack the predicate crime of bribery in violation of            state law.                                         -25-                                          25            function."   Id.   2(21) (emphasis  supplied).  "Government,"            ________     ___            in turn, is defined as:                      the  United  States,  any  state  or  any   county,                      municipality   or   other  political   unit  within                      territory   belonging  to  the  State,  the  United                      States, or any department, agency or subdivision of                      any of  the foregoing, or any  corporation or other                      association   carrying   out   the   functions   of                      government or formed pursuant to interstate compact                      or international treaty.                  Id.   2(13).  Whether the foregoing definitions encompass the            ___            police  chief of  the Passamaquoddy  Tribe at  Pleasant Point            requires consideration of the Tribe's legal relationship with            the State of  Maine.  That relationship is spelled out in the            federal Maine Indian Claims Settlement Act of 1980, 25 U.S.C.                1721-1735 ("Settlement Act"),  which ratified Maine's Act            to Implement the Maine  Indian Claims Settlement, 30 M.R.S.A.               6201-6214 ("Maine  Implementing Act").   See Passamaquoddy                                                        ___ _____________            Tribe  v. State of Maine,  75 F.3d 784,  787 (1st Cir. 1996);            _____     ______________            Couturier v. Penobscot Indian Nation, 544 A.2d 306 (Me. 1988)            _________    _______________________            (the  purpose  of the  Implementing Act  was  "to serve  as a            basic,  organic  document establishing  the  broad  and basic            provisions  of the  relationship  between the  State and  the            Maine Indians").                      Under these acts, the Passamaquoddies  are declared            to be "subject to  the laws of the State and to the civil and            criminal  jurisdiction of the courts of the State to the same            extent  as any other person  . . .  therein" unless otherwise            provided.    30  M.R.S.A.     6204;  see  also  25  U.S.C.                                                    _________                                         -26-                                          26            1725(b)(1) (approving the  jurisdictional scope set forth  in            the Maine Implementing Act).  However, the Maine Implementing            Act  also grants powers and duties to the Tribe comparable to            those of a municipality (in addition to special authority  to            regulate internal tribal matters).  See 30 M.R.S.A.   6206(1)                                                ___            ("Except as otherwise provided in this Act, the Passamaquoddy            Tribe . . .  shall have, exercise  and enjoy all the  rights,            privileges, powers and immunities, . . . and shall be subject            to  all the duties,  obligations, liabilities and limitations            of  a municipality of and subject to the laws of the State");            id.    6206(2) (granting a tribe, its officers, and employees            ___            immunity from suit when "the respective tribe . . . is acting            in  its governmental  capacity  to  the  same extent  as  any            municipality or like officers or employees thereof within the            State"); Penobscot Nation v. Stilphen, 461 A.2d 478, 488 (Me.                     ________________    ________            1983).  Tribe-appointed law enforcement officers "possess the            same powers and are subject  to the same duties,  limitations            and   training  requirements   as  other   corresponding  law            enforcement  officers  under  the laws  of  the  State."   30            M.R.S.A.    6210(4).   These powers include  shared authority            for enforcing  state laws  within Indian  territories (except            for  laws, not applicable here,  over which a  tribe may have            exclusive jurisdiction).  See id.   6210(4).                                         ___ ___                      The Maine legislature  has thus explicitly equated,            in most respects,  the powers and  obligations of tribes  and                                         -27-                                          27            tribal law enforcement officers with  those of municipalities            and  corresponding law enforcement  officers.  See Couturier,                                                           ___ _________            544 A.2d at 308 (tribes  share the immunity of municipalities            under  the Maine Tort Claims Act by operation of section 6202            of the Maine Implementing Act, and this immunity extends to a            tribe-appointed  police  officer  acting  in  a  governmental            capacity).   Since a  law enforcement  officer employed by  a            municipality would undoubtedly qualify as a "public servant,"            see 17-A M.R.S.A.    2(13) & 2(21), so too, we believe, would            ___            a tribe-appointed law enforcement officer.  The definition of            "public  servant" extends, in any event, to a person (whether            or  not an  official officer  or employee)  "participating as            juror,   advisor,  consultant   or  otherwise   performing  a            governmental function."  Id.   2(21).  Moore was charged with                                     ___            enforcing  state  laws  and  tribal   ordinances  within  the            reservation.   We  think  he fits,  therefore, rather  easily            within the Maine statute's definition of public servant.                      Defendants' reliance  upon United States  v. Tonry,                                                 _____________     _____            837  F.2d 1281  (5th  Cir. 1988)  is  misplaced.   Tonry  may                                                               _____            initially appear  analogous, because  it involved  charges of            conspiracy to violate and substantive violation of the Travel            Act  based  on interstate  travel  with intent  to  bribe the            chairman of  an Indian  tribe.   However, unlike  the instant            case  which involves  defining  "public servant"  under Maine            law,  the sole  question resolved  by the  Fifth  Circuit was                                         -28-                                          28            whether the  tribal chairman was a  "private fiduciary" under            Louisiana's  Commercial  Bribery  Statute.    Defendants call            attention  to  Tonry because  the  court  indicated that  the                           _____            tribal chairman  was not  a Louisiana public  official within            the meaning of another statute targeting public bribery.  Yet                                                     ______            in  that case, the government conceded  that issue, given the            particular statutory  scheme.   Here, in contrast,  the Maine            criminal code defines "public  servant" quite broadly using a            functional measure,  which is notably absent  from the public            __________            bribery law referred to in Tonry.   More importantly, Maine's                                       _____            criminal laws operate against  the backdrop of the Settlement            Act which ratified the Maine Implementing Act.  See Penobscot                                                            ___ _________            Nation,  461 A.2d at 489  ("It was generally  agreed that the            ______            acts set up a relationship between the tribes, the state, and            the  federal  government different  from the  relationship of            Indians   in  other   states   to  the   state  and   federal            governments.").  Defendants cannot expect  the jurisdictional            burdens on  the Tribe resulting from these acts to "disappear            merely because they have become inconvenient."  Passamaquoddy                                                            _____________            Tribe, 75 F.3d at 794.16             _____                                            ____________________            16.   We similarly dismiss  Cook's assertion that the bribery            of Moore to facilitate smuggling operations from  New York to            Maine and into Canada is an internal tribal matter  protected            from  federal  and  state   interference.    Cook  offers  no            statutory support  for interpreting the relevant provision of            the Maine Implementing Act this broadly, and indeed, the case            law   is  to  the  contrary.    See  30  M.R.S.A.     6206(1)                                            ___            ("[I]nternal  tribal  matters,  including  membership  in the            respective tribe or  nation, the right  to reside within  the                                         -29-                                          29                      Defendants  also  challenge  the   predicate  state            bribery violation on the  ground that Moore's official duties            excluded enforcing federal or Canadian law and thus could not            be influenced.  As noted, the statute prohibiting bribery  in            official matters punishes one who "promises, offers, or gives            a  pecuniary benefit  with the  intention of  influencing the                                  ___________________________________            other's  action,  decision,  .  .  .  or  other  exercise  of                     ______   ________                ___________________            discretion  as a public servant."   17-A M.R.S.A.   602(1)(A)            _______________________________            (emphasis  supplied).   The jury  could find on  the evidence            presented that,  as police  chief, Moore was  responsible for            general  surveillance of the reservation, and that defendants            selected  him, in  part, with  the intention  that he  divert            other officers  on the  reservation from patrolling  areas of            smuggling activity.  Cf.  State v. Beattie, 129 Me.  229, 151                                 ___  _____    _______            A. 427 (1930) (defendant  charged with bribing county sheriff            to refrain from seizing liquor and arresting person making an            unlawful sale).  Moore testified that he  normally would have            referred  smuggling activity to the local district attorney's            office and pursued  the matter  further if so  directed.   He            also  testified  to  having  a  mutually  beneficial  working                                            ____________________            respective  Indian  territories, tribal  organization, tribal            government, tribal  elections and  the use or  disposition of            settlement fund  income shall not be subject to regulation by            the State."); Penobscot Nation, 461 A.2d at 490 (holding that                          ________________            operation of beano  games is not  an internal tribal  matter,            for  "the term  embraces  only  those matters  illustratively            listed  in the statute  and other matters  like them," having            historical cultural importance).                                          -30-                                          30            relationship   with   Canadian  authorities   which  included            exchanging information.   It may be conceded that  his duties            did not  formally include enforcing federal  or Canadian law.            But an  honest municipal police officer would  be expected to            keep his eyes  open for  and report federal  and, in  present            circumstances,  even  foreign criminal  violations; receiving            something of value to turn a deliberate blind eye would limit            his  discretion in  his  official capacity  as tribal  police            chief.                           Defendants' related contention that  they recruited            Moore simply because  of his navigational skills and  not his            status as police chief  is undermined by substantial evidence            showing that they were aware of Moore's status and  concerned            with  law  enforcement  activities  from  the  first  meeting            onward.   We conclude that  bribery was a  legally sufficient            foundation  for  the  Travel  Act  violations, and  therefore            affirm those convictions.                      C.  Wire  Fraud:    Scheme  to  Defraud  of  Honest                      C.  Wire  Fraud:    Scheme  to  Defraud  of  Honest                      Services                      Services                      A third substantive offense, related to the bribing            of  the police chief, was that defendants devised a scheme to            defraud  the  residents of  the Passamaquoddy  Reservation at            Pleasant Point of  the honest services of  their police chief            and  knowingly caused  the  wires to  be  used in  interstate            commerce in  furtherance of  the scheme,  in violation of  18                                         -31-                                          31            U.S.C.      1343  and  1346.17    Defendant  Lazore  asserts,            without development,  that  the district  court  should  have            issued a judgment  of acquittal on these  counts in deference            to tribal  sovereignty.  The government  responds that tribes            are,  in any  event, subordinate  to the  federal government.            While  neither side spells out the  dispute, we understand it            to  be principally  a  jurisdictional one,  namely, that  the            federal government lacks authority to prosecute defendants on            a  matter involving internal  relations of  the Passamaquoddy            Tribe.                      The  Supreme  Court has  stated  that while  Indian            tribes  are "'unique  aggregations  possessing attributes  of            sovereignty over  both their  members and  their territory,'"            "[t]heir  incorporation within  the territory  of the  United            States, and their  acceptance of its protection,  necessarily            divested  them of some aspects  of the sovereignty which they            have previously  exercised."   United States v.  Wheeler, 435                                           _____________     _______            U.S. 313, 323 (1978)  (quoting United States v. Mazurie,  419                                           _____________    _______            U.S. 544, 557 (1975)).  The tribes generally retain the right            to self-government,  id. at 322, but  are nonetheless subject                                 ___            to federal criminal jurisdiction of both a specified and more            general nature.   See generally United  States v. Markiewicz,                              _____________ ______________    __________                                            ____________________            17.   Our  reversal of the convictions  for violating section            1343, supra, does  not resolve the  challenge here, which  is                  _____            based  upon  the  distinct  theory of  scheming  to  "deprive            another  of the  intangible right  to  honest services."   18            U.S.C.   1346.                                         -32-                                          32            978  F.2d 786,  797-802  (2d Cir.  1992) (discussing  federal            criminal  jurisdiction over offenses  committed by or against            an Indian or on Indian territory, as well as over "peculiarly            Federal" offenses), cert. denied, 506 U.S. 1086 (1993).                                  ____________                      The statutory violations charged under 18 U.S.C.               1343  and 1346  are  not specific  to  Native Americans,  but            rather  are of general applicability.   Cf. Wheeler, 435 U.S.                                                    ___ _______            at  330 n.30  ("Federal jurisdiction  also extends  to .  . .            crimes over which there is federal jurisdiction regardless of            whether an Indian is  involved, such as assaulting  a federal            officer,  18 U.S.C.   111  (1976 ed.).").   The latter crimes            may   involve  "an   independent  federal   interest   to  be            protected," id. at 331 n.32, though it is unclear that one is                        ___            required.  Compare  Markiewicz, 978 F.2d at  800, with United                       _______  __________                    ____ ______            States v. Begley, 42 F.3d 486, 500 (9th Cir. 1994)  (a Native            ______    ______            American  may be charged under  a federal criminal statute of            general  applicability  even  absent  a   peculiarly  federal            interest, if  charge is unaffected by federal enclave law and            Native Americans  have not  been excluded from  the statute's            application), cert. denied, 116 S. Ct. 93 (1995).  Wire fraud                          ____________            appears to belong  to this category of  general offenses that            apply  equally to  Native Americans;  even if  an independent            federal interest  is required to support  this application of            the statute, the interest is  to prevent use of the  wires in            interstate or foreign  commerce in furtherance of a scheme to                                         -33-                                          33            defraud.   Cf. H.R.Rep. No.  94-1038, 94th Cong.,  2d Sess. 3                       ___            (1976), reprinted in 1976  U.S.C.C.A.N. 1125, 1127 (noting in                    ____________            legislative history of the Indian Major Crimes Act [18 U.S.C.               1153],  which  prescribes  federal  jurisdiction  over  13            specified  offenses, that federal  criminal jurisdiction also            extends to "crimes that are peculiarly Federal. . . . such as            assaulting a federal officer  . . . or defrauding  the United            States"); see also United States  v. Funmaker, 10 F.3d  1327,                      ________ _____________     ________            1331 (7th Cir. 1993)  (18 U.S.C.   844(i), punishing  one who            destroys  by fire  property used  in or  affecting interstate            commerce, extends to a Native American who set fire to tribe-            owned gambling hall); United States  v. Finn, No. CRIM. 5-95-                                  _____________     ____            12(01), -12(02), -12(03), 1995 WL 783305 at *16-*22 (D. Minn.            Oct.  12,  1995)  (denying  motion to  dismiss  for  lack  of            jurisdiction  an  indictment   charging  officers  of  tribal            corporation with mail fraud in violation of 18 U.S.C.    1341            and 1346 and other offenses).                           As  discussed  earlier, the  United  States has  an            interest  in  preventing  use  of  the  wires  in  interstate            commerce to  further a  scheme to defraud,  including one  to            "deprive another of the  intangible right to honest services"            under section 1346.   Defendant has not shown, and  we do not            discern, how  the application  of sections  1343 and  1346 in            this  case would  interfere  with any  Native American  right            protected by statute  or treaty, or  right integral to  self-                                         -34-                                          34            government.18     Cf.  Funmaker,   10  F.3d  at   1332  ("The                              ___  ________            decision-making  power of  Indian tribes  ends .  . .  at the            point when those decisions would violate federal law designed            to  safeguard important  federal interests  such as  the free            flow  of  interstate  commerce.").     The  convictions   for            violations of section 1346, in conjunction with section 1343,            are affirmed.                       D. Jury Instruction on Good Faith Defense                      D. Jury Instruction on Good Faith Defense                      Defendants challenge the  district court's  refusal            to give a proposed instruction to acquit on wire fraud if the            jury found "that the  defendant had a good faith  belief that            his status as a  Native American entitled him to  freely pass            the United States-Canadian border  without paying any form of            taxes  on  the   goods  he  was  carrying."     The  proposed            instruction  would not have required the jury to find, as the            district court  instructed  instead, that  their  good  faith            belief was "objectively reasonable."  We need  not decide the            challenge  to the  jury instruction,  because the  wire fraud            convictions  based   on  the   scheme  to  defraud   Canadian            authorities of taxes and duties have been reversed.                                              ____________________            18.    While  Congress has  removed  federal  jurisdiction to            enforce  certain  federal  statutes involving  Indian-related            offenses  in the State  of Maine, wire fraud  laws are not so            included.  See 25 U.S.C.   1725(c) (removing federal criminal                       ___            jurisdiction over sections 1152 through 1156, 1160, 1161, and            1165 of Title 18).                                         -35-                                          35                      True, charges  under a second theory  of wire fraud            (depriving citizens on the reservation of the honest services            of  their police chief) have  been affirmed.   If refusing to            give the proposed  instruction relating to  aboriginal rights            were error, it  might have infected the  jury's assessment of            defendants'  intent  on  these  additional  counts  as  well.            However, defendants' argument is grounded in the first theory            of wire fraud alone;  they say that to  the extent that  this            case is  about having the specific intent to violate Canadian            tax  laws,  it is  analogous to  certain federal  tax offense            cases,  in  which an  instruction  that  good  faith must  be            "objectively  reasonable"  is  inappropriate.   See  Cheek v.                                                            ___  _____            United  States, 498 U.S. 192, 203 (1991).  Given our reversal            ______________            of  the  tax-related  charges,  defendants'   initially  weak            contention  is not even arguably  tenable.  In  any case, the            district court went beyond  the legal minimums in instructing            the jury that it could consider good faith as a defense.  Cf.                                                                      ___            Dockray,  943  F.2d  at  155  ("[W]here  the  court  properly            _______            instructs the jury  on the  element of intent  to defraud  --            essentially  the  opposite  of   good  faith  --  a  separate            instruction on good faith is not required.").                        E. Sentencing of Boots                      E. Sentencing of Boots                      Boots  challenges his sentence,  which, like Cook's            and  Lazore's, was at the low end of the applicable guideline            sentencing range:   18 months imprisonment, to be followed by                                         -36-                                          36            two  years  of  supervised  release.19     Mandatory  special            assessments  were  imposed.    Boots  raises four  sentencing            issues.                      1. Downward Departure                      1. Downward Departure                      Boots contends  first that the district court erred            in  refusing to grant a downward  departure.  He acknowledges            the  general rule that jurisdiction  does not lie for appeals            from a district court's  discretionary decision not to depart            downward.   See United States v. Tardiff, 969 F.2d 1283, 1290                        ___ _____________    _______            (1st  Cir.  1992).   However,  he  seeks  to  fit within  the            exception  for  a refusal  to  depart  based  upon a  court's            "misapprehension of  the rules governing departures."  United                                                                   ______            States v. Gifford, 17 F.3d 462, 473 (1st Cir. 1994).             ______    _______                      The exception is a narrow one, and is not met here.            A  review  of  the  sentencing transcript  reveals  that  the            district court judge  was well aware  of the applicable  case            law,  believed  he  had  authority to  depart  downward,  and            declined  to do  so  after carefully  weighing the  arguments            presented.  His discretionary judgment that  the case did not            involve  such  unusual  circumstances to  justify  taking  it                                            ____________________            19.    The guideline range was determined as follows:  a base            offense  level  of  6   pursuant  to  U.S.S.G.      2F1.1(a),            3D1.2(d),  and 3D1.3(b);  a seven-level  increase for  a loss            between $120,000 and $200,000  pursuant to    2F1.1(b)(1)(H);            and a two-level increase  for an offense involving  more than            minimal planning  pursuant to    2F1.1(b)(2)(A), for  a total            offense  level of 15.  With a criminal history category of I,            the applicable range was 18 to 24 months.                                         -37-                                          37            "outside  the  Guidelines'  'heartland,'"  United  States  v.                                                       ______________            Rivera, 994  F.2d 942, 949 (1st Cir. 1993), was not skewed by            ______            legal  errors such  as Gifford  describes.   It is  therefore                                   _______            unreviewable.                       2. Acceptance of Responsibility                      2. Acceptance of Responsibility                      Boots  claims  that  the district  court  erred  in            refusing to grant him a two-point reduction for acceptance of            responsibility  for  his  offenses  pursuant  to  U.S.S.G.               3E1.1(a).   He  says that  at trial  he did  not contest  the            factual  basis  for  the  charges, but  challenged  only  the            jurisdictional  bases,  and   should  not  be   punished  for            exercising his constitutional right to a trial.                      We  review for  clear  error  the district  court's            decision that Boots did not "clearly demonstrate[] acceptance            of responsibility" for his offense.  U.S.S.G.   3E1.1(a); see                                                                      ___            also United States  v. Lombard,  72 F.3d 170,  187 (1st  Cir.            ____ _____________     _______            1995).  The district  court declined to grant a  reduction in            part because  it believed that  if defendant had  been solely            concerned with jurisdictional issues  relating to his  Native            American status,  he could have entered  a conditional guilty            plea  and preserved the issue for appeal rather than going to            trial.  The  court also considered  the fact that  defendants            defended against  the bribery  aspect of the  case, insisting            that the  payments they offered  Moore were  not bribery  but            rather were salary for a business partner.                                           -38-                                          38                      A district court's determination of  whether such a            reduction is warranted deserves "great deference."  U.S.S.G.               3E1.1 comment. (n.5).  We  see no abuse of discretion here.            Cf. United States v.  Crass, 50 F.3d 81, 84  (1995) ("intent,            ___ _____________     _____                           ______            like any  other essential element  of the crime  charged, may            not  be contested  by  the defendant  without jeopardizing  a            downward  adjustment  for  'acceptance of  responsibility'");            United States v. Springs, 17 F.3d 192, 196 (7th Cir.) (noting            _____________    _______            that defendant who entered  conditional guilty plea "was able            to retain the  right to  challenge the  voluntariness of  his            confessions, and  he  still  received  the  maximum  possible            acceptance-of-responsibility  reduction"), cert.  denied, 115                                                       _____________            S. Ct. 375 (1994).                      3. More Than Minimal Planning                      3. More Than Minimal Planning                      Boots  challenges  the  two-level increase  imposed            pursuant to  U.S.S.G.    2F1.1(b)(2)  for offenses  involving            more than minimal planning.   The Guidelines state that  this            increase applies where repeated  acts are carried out over  a            period of time provided they were  not "purely opportune," as            well  as where steps  are taken to conceal  the offense.  See                                                                      ___            U.S.S.G.     1B1.1  comment.  (n.1(f)), 2F1.1(b)(2)  comment.            (n.2).  The sentencing  transcript reflects that the district            court  judge  imposed  this  increase  after considering  the            evidence of multiple acts taken by defendants over  a several            month  period.   Among the  acts specifically  noted  was the                                         -39-                                          39            bribery of Police Chief Moore, a  concealed activity in which            defendants  directly  participated  in  the  spring of  1992.            While  the  district court  may  reconsider  this issue  upon            remand  for resentencing in light of our reversal of the wire            fraud and conspiracy  convictions, it was not  clear error to            impose the increase.                      4. Amount of Loss                      4. Amount of Loss                      Boots claims that  insufficient evidence  supported            the  district  court's  calculation  of the  amount  of  loss            (between $120,000  and $200,000), which resulted  in a seven-            level  increase  to defendants'  sentences.    The range  was            determined based on  testimony at trial and  sentencing as to            the  quantity  of tobacco  transported  into  Canada and  the            corresponding duties  and taxes  owed.   Our reversal  of the            wire  fraud  count  involving  tobacco   smuggling,  and  our            vacating  of  the  conspiracy  count, require  a  remand  for            resentencing, at which time the district court may reconsider            the entire  question  of  loss  calculations,  including  the            instant issue.   We  see no  need to  deal further with  this            matter now.                      We have considered  defendants' other arguments and            find  them  to  be  without  merit.    The  convictions   for            violations  of 18  U.S.C.     1346  (wire  fraud intended  to            deprive residents  of honest services of  their police chief)            and 1952 (Travel  Act) are  affirmed.  The  violations of  18                                        ________                                         -40-                                          40            U.S.C.   1343  (wire fraud  relative to  Canadian duties  and            taxes)  are reversed.    The violation  of  18 U.S.C.     371                        ________            (conspiracy) is vacated and remanded for further  proceedings                            _______     ________            not  inconsistent  with this  opinion.   We  also  vacate the            sentences  of all  defendants  and  remand  for  resentencing            consistent with this opinion.            So ordered.            __ ________                                         -41-                                          41
