United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

 No. 09-1405

 ___________

United States of America, * 

*

 Plaintiff - Appellee, *

*

v. *

*

Timothy Conrad Rehak, *

*

 Defendant - Appellant. *

___________

Appeals from the United States

 No. 09-1406 District Court for the 

 ___________ District of Minnesota.

United States of America, *

*

 Plaintiff - Appellee, *

*

v. *

*

Mark Paul Naylon, *

*

 Defendant - Appellant. *

___________

Submitted: November 18, 2009

Filed: December 22, 2009

___________

Before MURPHY, SMITH, and BENTON, Circuit Judges. 

___________
1

 The Honorable Patrick J. Schiltz, United States District Judge for the District

of Minnesota.

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BENTON, Circuit Judge.

After a jury trial in district court,1

 Timothy Conrad Rehak and Mark Paul

Naylon were convicted of conspiring to violate civil rights under 18 U.S.C. § 241, and

theft of government property under 18 U.S.C. § 641. They appeal. Having

jurisdiction under 28 U.S.C. § 1291, this court affirms. 

I.

In 2004, Timothy Rehak, a law enforcement officer, and Mark Naylon, a public

information officer, were working for the Special Investigations Unit of the Ramsey

County Sheriff’s Office (RCSO). In September, the FBI began investigating Rehak

for corruption. On November 3, it conducted an “integrity test.” 

The FBI rented a room at the Kelly Inn under the (fictitious) name of Vincent

Pelligatti, placing $13,500 in cash in a duffel bag there. The FBI instructed a

cooperating individual to tell Rehak that a drug trafficker named “Vinnie” had been

arrested in Wisconsin and was trying to recover drugs and money he left in room 503

at the hotel. Rehak replied that he would try to “scarf” the money and drugs out of the

hotel room. 

Rehak called Naylon. At about 1:15 p.m., Rehak arrived at the hotel; Naylon

arrived a few minutes later. They asked the front-desk clerk to let them in to room

503; she refused because they did not have a search warrant. Rehak and Naylon

contacted Rolland Martinez, a Special Investigations sergeant, told him they had

received information of narcotics and cash in the hotel room, and asked him to get a

search warrant. When Sergeant Martinez arrived at the hotel to investigate, he found
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Naylon upset with the desk clerk. After gathering more facts, Sergeant Martinez left

to obtain a state search warrant.

At 3:38 p.m., Rehak, Naylon, and Sergeant Martinez entered room 503.

According to the FBI’s video recording, Sergeant Martinez begins searching the

bathroom while Rehak and Naylon search the main room. In the dresser, Rehak finds

the duffel bag with the $13,500. While Sergeant Martinez is in the bathroom, Naylon

motions for Rehak to give him some of the cash. Rehak hands Naylon $6,000, which

he puts in his coat pocket. As Sergeant Martinez returns to the main room, Rehak

purports to begin searching the bag and pulls out the remaining $7,500. Sergeant

Martinez is unaware that Rehak had given $6,000 to Naylon. Naylon leaves the hotel

room, goes to the trunk of his vehicle, and then returns to the room.

As part of the procedure for inventorying seized property, Sergeant Martinez

and Rehak separately counted the $7,500 remaining in the bag. During this procedure,

neither Rehak nor Naylon told Sergeant Martinez of the missing $6,000, which was

not included in the count.

At 4:19 p.m., Rehak and Naylon spoke outside the hotel room; Rehak left in his

car. A few minutes later, a deputy arrived with his drug dog. The deputy and Naylon

entered the hotel room. The dog sniffed the $7,500. Naylon did not tell the deputy

about the additional $6,000. In his report, the deputy stated that $7,500 was seized.

Sergeant Martinez completed a search warrant receipt, reporting only $7,500. Naylon

reviewed the completed (inaccurate) receipt. A copy of this receipt was left in the

hotel room to indicate what had been seized. As the inventory officer, Sergeant

Martinez took control of the $7,500 and deposited it at the Special Investigations Unit.

After the local officers left the hotel room, FBI agents entered, confirming that all

$13,500 was gone. 
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That evening, according to Minnesota Bureau of Criminal Apprehension

records, at 5:30 p.m. and again at 9:45 p.m., law enforcement databases were searched

by RCSO clerks for “Vincent Pelligatti,” the fictitious drug trafficker. No records

were found for him. Sergeant Martinez and the drug-dog deputy testified at trial that

they did not conduct any database searches for Vincent Pelligatti. The two warrant

clerks who ran the searches could not recall who requested them.

Hours later, about midnight, Rehak and Naylon called Sergeant Martinez at

home. Naylon said they had found an additional $6,000 in the hotel room under the

mattress. The next day, Sergeant Martinez obtained the $6,000 and amended his

report to reflect the full $13,500. Rehak completed a report that omitted where the

$6,000 had been found and how it had been handled. When Sergeant Martinez asked

him to add these details, Rehak replied he knew how to write a report and never made

the requested changes.

One month later, the FBI asked the St. Paul Police Department (SPPD) to obtain

the police reports of the Kelly Inn search. An SPPD supervisor asked the RCSO for

reports from search warrants executed at hotels, including the Kelly Inn. After

specifically inquiring about a search warrant in November at the Kelly Inn, a RCSO

records person said there was no record of the search. The SPPD supervisor reiterated

the request. Rehak called back that day, saying he had not yet completed the report

of the Kelly Inn search. Later that day, Rehak sent the report, which lacked the

section explaining where the money was found.

Nine months after this first integrity test, the FBI conducted another test. The

cooperating individual again contacted Rehak, saying that a drug trafficker had left

drugs and money in a vehicle. FBI agents observed Rehak and Naylon watching the

vehicle, but not entering it that day. Two days later, at 2:30 p.m., the cooperating

individual again contacted Rehak, saying the vehicle had been moved. At 3:00 p.m.,

the FBI observed Naylon conducting surveillance on the vehicle. At 5:30 p.m., Rehak
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and Naylon called in a canine unit to sniff inside the vehicle; the dog did not alert for

drugs.

At 8:40 p.m., Rehak called the cooperating individual and asked, “Why would

anybody store a substantial amount of dope in a stolen car parked at a hotel?” The

cooperating individual assured Rehak that drugs and money were there. At 10:00

p.m., with no other officers present, Rehak and Naylon entered the vehicle (where the

FBI had placed video and audio recording devices). They found a bag in the trunk

containing cash but no drugs. Immediately reacting that it was “odd” to find money

but no drugs, Naylon stated, “Another f**kin’ setup.” Rehak said, “They’re f**kin’

probably watchin’ us.” They walked a short distance away from the car, talking

briefly. Returning to the car, they discussed how to report the incident and whether

to admit they had been in the car. They called another deputy to tow it. Rehak said

he would write a report for the incident, but he never did.

Rehak and Naylon were charged with six counts of honest services wire fraud,

in violation of 18 U.S.C. §§ 1343 and 1346; one count of conspiring to violate civil

rights, in violation of 18 U.S.C. § 241; and one count of theft of government property,

in violation of 18 U.S.C. § 641. The jury acquitted on the wire fraud counts. It

convicted both men of conspiring to violate civil rights, and theft of government

property. The jury apparently did not believe Rehak’s testimony that their intent was

to play a practical joke on Sergeant Martinez. Instead, the verdicts adopted the

government’s theory of the case: Rehak and Naylon intended to steal the money, but

later changed their minds and decided to return it. 

II.

Defendants contend that there is insufficient evidence to support their

convictions for conspiring to violate civil rights because they did not actually violate

the civil rights of a real person. “In reviewing the sufficiency of the evidence, ‘we
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view the evidence in the light most favorable to the government, resolving evidentiary

conflicts in favor of the government, and accepting all reasonable inferences drawn

from the evidence that support the jury’s verdict.’” United States v. Blazek, 431 F.3d

1104, 1107 (8th Cir. 2005), quoting United States v. Gaona-Lopez, 408 F.3d 500, 504

(8th Cir. 2005).

It is a crime for “two or more persons [to] conspire to injure, oppress, threaten,

or intimidate any person . . . in the free exercise or enjoyment of any right or privilege

secured to him by the Constitution or laws of the United States.” 18 U.S.C. § 241.

Rehak and Naylon were convicted based on their agreement to take Vincent

Pelligatti’s money in violation of his due process rights. Defendants argue that this

fictitious person did not have rights, so they could not have conspired to violate them.

“Factual impossibility occurs when the objective of the defendant is proscribed

by the criminal law but a circumstance unknown to the actor prevents him from

bringing about that objective.” United States v. Sobrilski, 127 F.3d 669, 674 (8th Cir.

1997). “‘Factual impossibility is not a defense to an inchoate offense’ such as

conspiracy or attempt.” United States v. Joiner, 418 F.3d 863, 869 (8th Cir. 2005),

quoting United States v. Fleming, 215 F.3d 930, 936 (9th Cir. 2000). “[T]he crime of

conspiracy is complete on the agreement to violate the law implemented by one or

more overt acts, however innocent such act standing alone may be, and it is not

dependent on the success or failure of the planned scheme.” United States v.

Littlefield, 594 F.2d 682, 684 (8th Cir. 1979). See also United States v. Jannotti, 673

F.2d 578, 591 (3d Cir.) (en banc) (upholding Hobbs Act conspiracy convictions for

receiving money to influence official conduct from undercover agents posing as

foreign business executives seeking favorable government action), cert. denied, 457

U.S. 1106 (1982); United States v. Parker, 165 F. Supp. 2d 431, 456 (W.D.N.Y.

2001) (defendants convicted under 18 U.S.C. § 241 for conspiring to violate rights of

a fictitious drug dealer, who was actually an undercover agent), aff’d sub nom. United

States v. Ferby, 108 Fed. Appx. 676, 680 (2d Cir. 2004) (unpublished). 
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In this case, the objective of defendants was to take the money of a drug

trafficker, Vincent Pelligatti. Their goal, to keep his money as their own, violates the

law. See United States v. McClean, 528 F.2d 1250, 1255 (2d Cir. 1976) (stating that

police officers who convert to private purposes funds lawfully seized from suspected

criminals violate those criminals’ civil rights). The fact that Pelligatti was fictitious

was unknown to Rehak and Naylon. This circumstance prevented them from actually

violating a person’s due process rights. While it was factually impossible to violate

his rights, defendants were charged and convicted of conspiring to violate his rights.

The crime was committed upon their agreement to steal his money. That they were

unsuccessful is irrelevant to their culpability for conspiring. 

The jury heard ample evidence that Rehak and Naylon conspired to take the

money in violation of Pelligatti’s due process rights: (1) a cooperating individual

called Rehak to tell him a drug dealer named “Vinnie” had left money and drugs in

a hotel room; (2) Rehak told the cooperating individual he would try to “scarf” the

money and drugs from the hotel room; (3) Rehak and Naylon went to the hotel and

tried to gain access without a search warrant, even though Rehak knew they needed

a search warrant to enter the room; (4) Rehak found the money and handed $6,000 of

it to Naylon, who pocketed it; (5) they allowed the other officers to believe only

$7,500 was found; (6) Rehak falsified the search warrant return and his report of the

incident; (7) even after returning the money, Rehak and Naylon never told anyone

about how or where it was actually found, or that they were playing a joke on Sergeant

Martinez; and (8) they recognized the second FBI integrity test as “another setup.”

The evidence was sufficient for a reasonable jury to find that Rehak and Naylon

agreed to take Pelligatti’s money in violation of his due process rights.

III.

Defendants suggest they did not conspire to violate Pelligatti’s rights, because

if the facts were as they believed, the money was drug money subject to forfeiture.
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Even if defendants believed the money was forfeitable, agreeing to convert it to

personal use, rather than following forfeiture procedures, is sufficient for conviction

under 18 U.S.C. § 241. See McClean, 528 F.2d at 1255-56. Alternatively, defendants

argue that they believed Pelligatti abandoned his money and therefore had no rights

to it. This argument is contrary to the jury’s finding that defendants conspired to steal

money from an “owner.”

Next, Rehak and Naylon claim that they cannot be convicted unless prior case

law gave them “fair warning” that their conduct violated a federal civil right. See

United States v. Lanier, 520 U.S. 259, 267-68 (1997). Relying on Fourth

Amendment search-and-seizure cases, defendants argue that since they had a search

warrant, the search of the hotel room and the seizure of the money were lawful, and

their subjective motivations are irrelevant, citing Whren v. United States, 517 U.S.

806, 813 (1996). To the contrary, the indictment here charged a conspiracy to deprive

property without due process of law. In this case, subjective motivations are relevant

to prove the intent to deprive property without due process of law under 18 U.S.C. §

241. 

IV. 

Defendants also assert that the district court erred in its instructions to the jury.

This court reviews a district court’s jury instructions for an abuse of discretion.

United States v. Turner, 189 F.3d 712, 721 (8th Cir. 1999). “In reviewing challenges

to jury instructions, this Court recognizes that the district court has wide discretion in

formulating the instructions, and we will affirm if the entire charge to the jury, when

read as a whole, fairly and adequately contains the law applicable to the case.”

Blazek, 431 F.3d at 1109.
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A.

Defendants contend the district court erred in failing to define “due process”

for the jury. The court instructed the jury that defendants must have reached “an

understanding to injure a person in Minnesota in the enjoyment of his civil rights.”

The court further stated that to agree to injure a person in the enjoyment of his civil

rights, the defendants must have agreed to steal “property and thereby depriv[e] its

owner of property without due process of law.” Defendants counter that the jury

should have been instructed that a taking “is not a deprivation of due process . . . if

there is what is called a post-deprivation remedy available.”

Defendants cite no authority that a criminal violation under section 241 cannot

occur if the state provides a post-deprivation remedy. The cases defendants cite hold

that a plaintiff in a section 1983 action cannot recover for the loss of property by state

employees if the state provides an adequate remedy for the loss. See Parratt v.

Taylor, 451 U.S. 527 (1980), overruled on other grounds by Daniels v. Williams, 474

U.S. 327, 329 (1986); Hudson v. Palmer, 468 U.S. 517 (1984). These cases are

inapposite here, where the focus is on the defendants’ agreement, not the victim’s

damages. Defendants’ proposed instruction misstates the law.

Defendants also state that the district court erred in failing to instruct the jury

that if it found that defendants’ conduct did not “harm the citizens,” then there was no

constitutional violation. Defendants were charged with conspiracy to violate civil

rights. The government was not required to prove they succeeded in violating the

rights of others. This proposed instruction would also inaccurately state the law. 

B.

Defendants also argue the district court erred in its instructions on the theft-ofgovernment-property charge. The statute provides: “Whoever . . . steals . . . or
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knowingly converts to his use or the use of another . . . any . . . money . . . of the

United States or of any department or agency thereof . . .” shall be guilty of an offense

against the United States. 18 U.S.C. § 641.

The district court instructed the jury that: 

The crime of theft of government property as charged in Count 7 has

three essential elements, which are:

One, the defendant voluntarily, intentionally, and knowingly stole or

converted money to his own use or to the use of another;

Two, the defendant acted with the intent to deprive the owner of the use

or benefit of the money so taken; and

Three, the money belonged to the Untied States . . . .

With respect to the first element: To “steal” means to knowingly take

something with the intent to deprive the thing’s owner permanently or

temporarily of the rights and benefits of ownership. To “convert” means to

deliberately take or retain something with the intent to deprive the thing’s

owner of its use or benefit either temporarily or permanently. Property can be

converted through misuse or abuse of the property as well as through its use in

an unauthorized manner or to an unauthorized extent.

With respect to the second element – that is, the defendant’s intent – the

government need not prove that the defendant knew that the United States

owned the money at the time of the taking.

. . .

Defendants argue this instruction is erroneous in two ways. First, the jury could

convict even if it found that defendants intended only to take the money temporarily.

They proposed the following instruction: 
2

 Defendants cite United States v. May, 625 F.2d 186, 192-93 (8th Cir. 1980),

where this court held that a conviction under section 641 requires a serious violation

of the owner’s right to the property. At trial, defendants did not cite May, nor request

an instruction requiring the jury to find a “serious violation.” Here, there was no plain

error because the court’s instruction, following Morissette, required a serious violation

by telling the jury that it must find defendants “acted with the intent to deprive the

owner of the use or benefit of the money so taken.”

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If the defendant’s intent was to deprive permanently, then the conversion

becomes a theft. If the conversion is limited in time, and lacks the party’s

intent to steal permanently, then it is not a crime.

This is not the law. 

Conversion . . . may be consummated without any intent to keep and without

any wrongful taking, where the initial possession by the converter was entirely

lawful. Conversion may include misuse or abuse of property. It may reach use

in an unauthorized manner or to an unauthorized extent of property placed in

one’s custody for limited use.

Morissette v. United States, 342 U.S. 246, 271-72 (1952) (emphasis added).

In Morissette, the Supreme Court recognized that section 641 intended to fill

“the gaps or crevices on the law on larceny-type offenses.” United States v. McRee,

7 F.3d 976, 982 (11th Cir. 1993) (en banc), citing Morissette, 342 U.S. at 271-72, cert.

denied sub nom. Hale v. United States, 511 U.S. 1071 (1994). The statute reaches all

instances where “one may obtain wrongful advantages from another’s property.”

Morissette, 342 U.S. at 271. Section 641 prohibits both permanent and temporary

takings. See, e.g., McRee, 7 F.3d at 980; United States v. Howard, 30 F.3d 871, 875

(7th Cir. 1994); United States v. Sparkman, 112 Fed. Appx. 358, 360 (5th Cir. 2004)

(unpublished) (conviction for theft of government funds did not require proof

defendant intended to permanently deprive the government of funds). The district

court’s instruction fairly stated the law by including temporary takings.2
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Finally, Defendants argue that the district court committed plain error, Fed. R.

Crim. P. 52(b), by instructing that “the government need not prove that the defendant

knew that the United States owned the money at the time of the wrongful taking.”

“Under plain error review, ‘there must be (1) error, (2) that is plain, and (3) that

affects substantial rights.’” United States v. Vincent, 575 F.3d 820, 825 (8th Cir.

2009), quoting United States v. Keller, 413 F.3d 706, 710 (8th Cir. 2005). Here,

there was no error because the government need not allege or prove that the

defendants knew the property was the property of the United States. See United

States v. Denmon, 483 F.2d 1093, 1095 (8th Cir. 1973).

Defendants contend the Supreme Court’s recent decision in Flores-Figueroa

v. United States, 129 S. Ct. 1886 (2009), effectively overrules Denmon. In FloresFigueroa, the Supreme Court interpreted 18 U.S.C. § 1028A:

Whoever, during and in relation to any felony violation enumerated in

subsection (c), knowingly transfers, possesses, or uses, without lawful

authority, a means of identification of another person shall, in addition to the

punishment provided for such felony, be sentenced to a term of imprisonment

of 2 years. 

The Court stated that as “a matter of ordinary English grammar,” the word

“knowingly” must apply to “all the subsequently listed elements of the crime.”

Flores-Figueroa, 129 S. Ct. at 1890. Therefore, the government must prove that the

defendant knew that the “means of identification” belonged to “another person.” Id.

at 1894. 

Defendants would apply this construction to section 641: to be convicted, they

must know the property they steal is owned by the United States. The context of

section 641 defeats this interpretation. Courts have consistently held that the

government is not required to prove a defendant knew the property he stole was

owned by the United States because the United States’ ownership merely provides the
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basis for federal jurisdiction. See United States v. Speir, 564 F.2d 934, 938 (10th

Cir.), cert. denied, 435 U.S. 927 (1978); United States v. Jermendy, 544 F.2d 640,

641 (2d Cir.), cert. denied, 430 U.S. 909 (1976); United States v. Crutchley, 502 F.2d

1195, 1201 (3d Cir. 1974); Denmon, 483 F.2d at 1095; United States v. Smith, 489

F.2d 1330, 1333-34 (7th Cir.), cert. denied, 416 U.S. 994 (1973); United States v.

Boyd, 446 F.2d 1267, 1274 (5th Cir. 1971); United States v. Howey, 427 F.2d 1017,

1018 (9th Cir. 1970).

The Howey case explains:

It was not an essential part of the common law larceny-type offense that the

thief knew who owned the property he took; it was enough that he knew it did

not belong to him. The legislative history provides no support for an

assumption that Congress intended in section 641 to add to the common law

offenses a new requirement that a thief know who owned the property he was

stealing.

The reason for including the requirement that the property, in fact, belongs to

the Government was to state the foundation for federal jurisdiction. A

defendant’s knowledge of the jurisdictional fact is irrelevant, as we have held

in many cases interpreting analogous statutory provisions. 

Howey, 427 F.2d at 1018. See also United States v. Feola, 420 U.S. 671, 676-77

(1975) (holding that knowledge of the victim’s true identity as a federal officer was

unnecessary to an indictment for conspiracy to assault a federal officer, because the

federal-officer element was jurisdictional); United States v. Cox, 577 F.3d 833, 838

(7th Cir. 2009) (in prosecution for interstate transportation of a minor for sexual

activity, holding that government was not required to prove defendant knew that

person transported for sex was not yet 18, stating that Flores-Figueroa did not apply

in this context). The district court correctly instructed the jury that the government

was not required to prove the defendants knew the money was owned by the United
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States. In sum, the district court’s instructions fairly and adequately stated the law

applicable to this case.

V.

Defendants argue the government’s indictment, and the jury’s verdicts, are

internally contradictory. They claim it is impossible for them to be guilty of stealing

money that was both Vincent Pelligatti’s and the government’s. As discussed earlier,

defendants were not charged or convicted of stealing Pelligatti’s money. They were

charged and convicted of conspiring to do so. By the jury’s verdicts, it concluded

Rehak and Naylon believed that Vincent Pelligatti left drug money in a hotel room,

and they agreed to steal part of it. Unbeknownst to them, the money belonged to the

government. The verdicts are not internally inconsistent. 

VI.

Defendant Rehak objects that the district court erred in finding he perjured

himself at trial and in applying an adjustment for obstruction of justice at sentencing.

The district court’s interpretation of the Sentencing Guidelines is reviewed de novo

while its factual findings underlying an adjustment for obstruction of justice are

reviewed for clear error and given great deference. United States v. Brown, 539 F.3d

835, 839 (8th Cir. 2008). 

 “Under U.S.S.G. § 3C1.1 a defendant is subject to a two level enhancement if

he ‘testifies falsely under oath in regard to a material matter and does so willfully

rather than out of confusion or mistake.’” Id., quoting United States v.

Mendoza-Gonzalez, 363 F.3d 788, 796 (8th Cir. 2004). “When a defendant objects

to an obstruction enhancement based on perjury, the district court must make findings

that the defendant willfully gave false testimony concerning a material matter in the

case.” Id.
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In applying the enhancement at sentencing, the court stated:

I do, however, find it more likely than not that Mr. Rehak perjured himself

when he testified under oath that he did not intend to steal money from the

Kelly Inn, but that he and Mr. Naylon were playing a prank on Sergeant

Martinez. This testimony was, in the words of Comment 2 to Section 3C1.1,

“a denial of guilt under oath that constitutes perjury.” I further find that Mr.

Rehak’s false testimony related a material matter and was done willfully rather

than out of confusion, mistake, or faulty memory. I have already described the

basis for this finding, when I described the basis for my finding that Mr. Rehak

and Mr. Naylon intended to permanently take the $6,000. I will therefore

apply, over the defense objection, the two-level enhancement under Section

3C1.1 for obstruction of justice.

Rehak cites United States v. Dunnigan, 507 U.S. 87 (1993), arguing that it

holds that the enhancement is precluded when the defendant’s perjury relates to his

intent. Rehak misreads Dunnigan. The Court then stated that the enhancement is not

appropriate merely because a jury renders a guilty verdict and disbelieved or found

inadequate a defendant’s testimony. Dunnigan, 507 U.S. at 95. The Court held that

“a district court must review the evidence and make independent findings necessary

to establish a willful impediment to or obstruction of justice, or an attempt to do the

same.” Id. The district court made the proper findings in this case, which were not

clearly erroneous. 

VII.

 The judgments of the district court are affirmed.