13-4639-cr
United States v. Thomas

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 31st day of October, two thousand fourteen.

PRESENT:

           JOHN M. WALKER, JR.,
           JOSÉ A. CABRANES,
           RAYMOND J. LOHIER, JR.,
                                Circuit Judges.
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UNITED STATES OF AMERICA,

                     Appellee,

                               -v.-                                                              No. 13-4639-cr

MICHAEL THOMAS,

                      Defendant-Appellant.
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FOR DEFENDANT-APPELLANT:                                                  STEVEN B. RASILE, Law Offices of Mirto &
                                                                          Rasile, West Haven, CT

FOR APPELLEE:                                                             CHRISTOPHER M. MATTEI, Marc H.
                                                                          Silverman, Assistant United States Attorneys,
                                                                          for Deirdre M. Daly, United States Attorney
                                                                          for the District of Connecticut, New Haven,
                                                                          CT




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        Appeal from a conviction in the United States District Court for the District of Connecticut
(Janet Bond Arterton, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.

        In appealing his conviction in the District Court, defendant Michael Thomas contends that
the District Court abused its discretion and violated his due process rights by excluding evidence he
sought to introduce at trial.

                                                   BACKGROUND

        On January 4, 2013, a federal grand jury returned an indictment charging Thomas, the
former Chairman of the Mashantucket Pequot Tribal Nation (“MPTN” or “Tribe”), with one count
of theft from an Indian tribal organization, in violation of 18 U.S.C. § 1163, and two counts of theft
concerning an Indian tribal government receiving federal funds, in violation of 18 U.S.C.
§ 666(a)(1)(A).1 Thomas was alleged to have used, between October 2007 and September 2009, his
MPTN-issued American Express charge card to pay $100,087.63 in personal expenses. On July 24,
2013, a jury convicted Thomas on all counts. On November 19, 2013, Thomas was sentenced,
principally, to imprisonment for 18 months.2

        Before trial, the government submitted two motions in limine, opposed by Thomas, to
exclude evidence that: (1) Thomas, before the timeframe charged in the indictment, reimbursed the
Tribe for other personal charges to his card; and (2) other MPTN tribal councilmembers used
MPTN-issued charge cards to pay for personal expenses. On July 19, 2013, the District Court issued
an oral ruling, granting the government’s motions and excluding the proffered evidence. After
Thomas was convicted at trial, the District Court issued a written opinion confirming its oral ruling.

        In its opinion, the District Court held that, because intent to repay stolen funds is not a legal
defense to charges of theft or embezzlement, evidence that Thomas previously reimbursed the
Tribe for personal expenses was not relevant. The Court also held that evidence of charge card
misuse by Shalida Jones—another MPTN tribal councilor who used her card for $36,511 in personal
expenses, which she later reimbursed—was not relevant to Thomas’s state of mind, because


          1 Thomas does not raise a challenge to federal jurisdiction. While we have affirmed federal jurisdiction over

offenses under 18 U.S.C. § 1163—see United States v. Markiewicz, 978 F.2d 786, 800 (2d Cir. 1992) (“Jurisdiction here is
appropriate, as § 1163 clearly grants federal jurisdiction over Indian defendants who commit this crime against Indian
victims on Indian territory.”)—we have never had occasion to address whether 18 U.S.C. § 666(a)(1)(A) may be used to
prosecute theft from an Indian tribal government receiving federal funds. The Eighth Circuit has, however, affirmed
convictions obtained under the latter statute for individuals who stole from a tribal government. See United States v.
Pemberton, 121 F.3d 1157 (8th Cir. 1997).

         2   Thomas is currently serving his term of incarceration.



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Thomas was unaware, when he committed the charged misconduct, that Jones had used her card to
pay for personal expenses.

                                                      DISCUSSION

          Thomas’s sole claim on appeal is that the District Court abused its discretion and violated his
due process rights by excluding this evidence at trial. A defendant has “a fundamental due process
right to present a defense.” See United States v. Mi Sun Cho, 713 F.3d 716, 721 (2d Cir. 2013) (per
curiam). That right, however, is “not absolute, for a defendant ‘must comply with established rules
of procedure and evidence designed to assure both fairness and reliability.’” Id. (quoting Washington
v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001)). “Thus, a defendant does not have an unfettered right to
offer testimony that is inadmissible under the rules of evidence.” Id.

        In light of the District Court’s “superior position to assess relevancy and to weigh the
probative value of evidence against its potential for unfair prejudice,” United States v. Abu-Jihaad, 630
F.3d 102, 131 (2d Cir. 2010), we will “not overturn the district court’s decision to admit or reject
evidence absent an abuse of discretion,” United States v. Ramirez, 609 F.3d 495, 499 (2d Cir. 2010).

        Thomas concedes that the intent to repay funds is no defense to charges of theft or
embezzlement.3 He contends, however, that prior instances where he charged personal items to his
card were relevant for another purpose—namely, to prove that he “lacked the requisite intent to
commit the crimes with which he was charged.” It is undisputed that the Tribe had an official policy
prohibiting the use of the card to pay for personal expenses. Thomas asserts, however, that his
prior conduct showed that, in practice, the Tribe permitted officials to charge personal items, so long
as they subsequently reimbursed the cost. Thomas also claims that the personal charges and
reimbursements of another tribal official, Jones, were relevant for the same reason—to show that
“there existed a practice or policy within the Tribe to place personal expenses on the card so long as
they were reimbursed.” According to Thomas, the District Court—by excluding evidence of his
and Jones’s prior conduct—improperly prevented him from showing that he complied with the

           3 We have not yet had occasion to decide this issue squarely, but we have, in an unpublished opinion, quoted

with approval the First Circuit’s opinion in United States v. Young, 955 F.2d 99 (1st Cir. 1992), stating that “an intent to
return money or property is not a defense to the charge of embezzlement.” United States v. Buckley, Nos. 95-1469, 95-
1505, 1996 WL 282140, at *2 (2d Cir. May 29, 1996) (quoting Young, 955 F.2d at 104) (internal quotation marks omitted).
Other circuits have also so held. See, e.g., United States v. Angelos, 763 F.2d 859, 861 (7th Cir. 1985) (“[I]t is irrelevant to a
charge of embezzlement that the embezzler intended to return the money he embezzled—or even that he did return
it.”); United States v. Coin, 753 F.2d 1510, 1511 (9th Cir. 1985) (per curiam) (“The intent to return property is not a defense
to embezzlement, nor to misapplication of funds. Such crimes are complete when the misapplication or embezzlement
occurs.” (citations omitted)); United States v. Cauble, 706 F.2d 1322, 1354 (5th Cir. 1983) (“[U]ltimate restitution is not a
defense to the crime of willful misapplication because the crime is complete at the time the misapplication occurs.”);
United States v. Scheper, 520 F.2d 1355, 1358 (4th Cir. 1975) (“If an employee knowingly appropriates his employer’s
money to his own use, he may be found guilty of embezzlement even though at the time he intended to return it.”);
United States v. Acree, 466 F.2d 1114, 1118 (10th Cir. 1972) (“The offense occurred and was complete when the
misapplication took place. What might have later happened as to repayment is not material and could not be a
defense.”). However, because Thomas concedes that his purported intent to repay funds is not a defense to an
embezzlement charge, we need not decide this issue.


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Tribe’s unwritten policy and that, thus, he lacked the requisite intent to violate either 18 U.S.C. § 666
or § 1163.

        We find no error in the District Court’s evidentiary rulings, much less an “abuse of
discretion.” See generally In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (explaining the term of art
“abuse of discretion”); Joseph T. Sneed, Trial-Court Discretion: Its Exercise by Trial Courts and Its Review
by Appellate Courts, 13 J. App. Prac. & Process 201, 207–08 (2012) (commentary by the late Judge
Sneed, a former Dean of the Duke Law School, on the several possible meanings of “abuse of
discretion”). Even if the evidence at issue was sufficient to establish that the Tribe, in practice,
permitted its officials to charge personal expenses to their cards with subsequent reimbursement,
such evidence would only have been relevant at trial if Thomas’s conduct comported with that
practice. Here, it is undisputed that Thomas did not reimburse the Tribe for any of the over
$100,000 in personal expenses that he charged to his card between October 2007 and September
2009—despite the fact that he was not indicted until January 2013. Any evidence purporting to
show that the Tribe’s “practical policy” permitted its officials to make personal charges with
subsequent reimbursement, or that Thomas had sporadically reimbursed the Tribe for personal
expenses prior to the period charged in the indictment, was therefore irrelevant to Thomas’s case.
Moreover, the probative value of admitting evidence of this “practical policy” to the jury—only to
have the evidence show that Thomas did not comply with that policy either—was substantially
outweighed by the danger of confusing and misleading the jury as to the true issues at stake. As the
District Court aptly stated in its oral ruling before trial:

        So it seems to me the question that is left—and I am persuaded that intent to repay
        is not a defense to embezzlement or willful misappropriation . . . . There is this tiny
        little sliver that seems to me perhaps ought to remain open . . . . I guess it’s an
        alleged belief that the practice of charging and reimbursing was a legitimate tribal
        practice. My little sliver disappears, though, when that’s not what [Thomas] did. . . . If the jury
        is to be focused on . . . [Thomas’s] activity and whether the government proves it
        unlawful for Counts One, Two, and Three, it doesn’t seem to me that what he did in the
        past, but didn’t do now, is going to have much probative value and has the potential for confusing the
        jury on what it is they’re supposed to be focused on. On the other hand, if . . .
        Thomas . . . had evidence that other tribal council members charged big ticket items,
        like $80,000 of limo services, and went years without repaying, that’s getting closer in
        comparability. From what the government is saying, there isn’t any such evidence.

App’x 70–71 (emphases added).

        Because we agree with the District Court that the evidence at issue was not relevant to any
fact of consequence, and that the purported probative value of that evidence was substantially
outweighed by the danger of confusing and misleading the jury, we decline to reverse the District
Court’s ruling that the evidence was inadmissible under Federal Rules of Evidence 402 and 403.


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                                        CONCLUSION

       We have reviewed the record and the parties’ arguments on appeal. For the reasons set out
above, Thomas’s conviction and sentence are AFFIRMED.




                                             FOR THE COURT,
                                             Catherine O’Hagan Wolfe, Clerk of Court




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