Three years after pronouncing the sentence, a federal judge has ordered Clifford G. Birdinground, a former Crow tribal chairman, to start serving his 37-month term for taking kickbacks in a corruption case.
Birdinground, 70, pleaded guilty to a bribery charge and was sentenced in September 2003. Since then, he has been free while fighting both his plea and the sentence in a series of motions to the 9th U.S. Circuit Court of Appeals.
Assigned to federal prison
Earlier this month, U.S. District Judge Richard Cebull affirmed the sentence and ordered Birdinground to surrender to a prison designated by the Bureau of Prisons. Birdinground originally was assigned to the federal prison in Florence, Colo.
Birdinground is to report by Jan. 4, said Penny Strong, his attorney.
Birdinground will not be released pending appeal, Cebull said, "because any appeal he may have will not raise a substantive issue of law" likely to result in a reversal, a new trial, a sentence that would not include imprisonment or a reduced term.
If he were to resentence Birdinground, Cebull said, he would be inclined to give him more time because of the "widespread nature of his corruption which has become evident in the three years since his guilty plea."
Tribal funds embezzled
The judge referred to five other cases in which former tribal finance director Kelly Dee Passes embezzled tribal funds by using fake contracts to funnel money to other people. Those people then cashed the checks and gave some or all of the money to Passes and Birdinground in a scheme to pay for Birdinground's legal defense. Birdinground was not charged in the embezzlement scheme, but Passes was convicted and was sentenced to a year and a day in prison.
Birdinground pleaded guilty in October 2002 to taking $2,700 in so-called "bird-dog" fees from a Billings car dealership for arranging the purchase of vehicles by the tribe and tribal members. He resigned as chairman as a condition of his plea agreement.
Birdinground has been fighting his conviction since, first by trying to withdraw his guilty plea and then by seeking a new sentencing hearing.
"I do believe we will file another appeal," Strong said Tuesday. "It's a new day for the federal criminal justice system in which many other grounds to give lighter sentences are available to the court," she said, referring to a Supreme Court ruling that made the mandatory sentencing guidelines advisory and to other court rulings.
"We believe Mr. Birdinground did not have his day in court" regarding allegations of corruption with Passes, Strong said. "Mr. Birdinground denies the corruption angle that has been heavily alleged by the government."
Strong also is evaluating whether to seek a stay of Cebull's order sending Birdinground to prison.
The appellate court upheld Birdinground's guilty plea, saying he knew what he was doing when he admitted bribery. The court also ruled that there wasn't a language problem, as Birdinground claimed.
Strong then petitioned for a rehearing after an appellate court decision on sentencing rules. The appellate court remanded the case to Cebull in June 2005 to determine whether Birdinground's sentence would have been different under advisory, rather than mandatory, sentencing guidelines.
Cebull concluded two months later that Birdinground's sentence would have been the same and that it was reasonable. The judge did not seek the views of the attorneys before issuing his ruling.
Strong appealed again and filed a motion to stay the sentence and continue Birdinground's release pending appeal.
The government responded by seeking an order directing Birdinground to begin his sentence.
Cebull agreed with the government and in January ordered Birdinground to surrender. The only issue to be appealed, Cebull said, was whether he erred by not seeking counsels' views before declining to resentence Birdinground. Cebull also questioned whether the intent of Birdinground second's appeal was to delay his sentence.
Strong filed an emergency motion to have Birdinground released pending appeal, arguing that the appeal could lead to a new hearing and a sentence that did not include imprisonment. The appellate court granted the motion in February and ordered Birdinground released pending the appeal.
Finally, in October, the appellate court ruled that Cebull erred by not seeking counsels' views. Cebull directed the lawyers to file briefs, which he reviewed.
In his latest order, filed Dec. 1, Cebull again said the 37-month sentence would not have been different using advisory guidelines.
Birdinground "commenced his criminal activity very shortly after taking elected office. The sentence previously imposed is justified for that reason," Cebull said. Although Birdinground denied various other corruption charges, Cebull said, the evidence suggests that the kickback scheme "was only one way (Birdinground) profited from his office at the expense of his people. A three-year prison sentence will discourage future abuse of power by elected officials within and without the Crow Tribe."