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General Memorandum 12-003

General Memorandum 12-003
Appeals Court Upholds Theft Conviction under Casino Employee Statute for Non-Employee

On January 5, 2012, a panel of the Tenth U.S. Circuit Court of Appeals published its opinion in the case United States v. Bryant, Case No. 11-7029, affirming the conviction of Kerry Raina Bryant under a federal statute criminalizing theft from a tribal casino by casino employees, even though Ms. Bryant herself was not an employee of the casino.

The theft occurred at the Choctaw Casino and Resort, where Ms. Bryant's sister (and later co-defendant) worked as a cashier. Ms. Bryant presented a ticket for a 90-cent payout to her sister, who paid Ms. Bryant just over $4,000. The transaction was recorded by the casino's video cameras, and both sisters were charged under a federal statute criminalizing theft by "an officer, employee, or other individual licensee of a gaming establishment operated by or for or licensed by an Indian tribe." Ms. Bryant pleaded guilty, but reserved the right to challenge the court's jurisdiction.

Ms. Bryant argued that, because she was not a casino employee, she should have been charged under a different statute that more generally prohibits theft from Indian casinos. One difference between the two statutes is their sentencing provisions―a person convicted under the employee statute may be sentenced to up to twenty years in prison, while the maximum sentence under the general statute is only ten years. Ms. Bryant acknowledged that she aided and abetted her sister, who was a casino employee. However, Ms. Bryant argued that the federal aiding-and-abetting statute covers only crimes against the United States, and does not include crimes against Indian tribes.

The Tenth Circuit rejected both arguments. The court concluded that application of the aiding-and-abetting statute was proper because "the crime was against a gaming establishment licensed by the National Indian Gaming Association [sic] that sits on territory subject to the jurisdiction of the United States. Plainly there was a crime against the United States." Furthermore, because Ms. Bryant aided and abetted a casino employee in the theft, it was appropriate to charge her under the statute pertaining to casino employees.

The Tenth Circuit's decision affirms the authority of the federal government to invoke the employee statute, and its harsher sentencing provisions, against non-employees who aid tribal casino employees in a theft. Please let us know if we may provide more information regarding this important development.

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William R. Norman (wnorman@hobbsstraus.com) or
Dan Lewerenz (dlewerenz@hobbsstraus.com) at (405) 602-9425.

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