## 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.

-2- BENTON, Circuit Judge. After a jury trial in district court, 1 Timothy Conrad Rehak and Mark Paul Naylon were convicted of c onspiring 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 enforcem ent officer, and Mark Naylon, a public information officer, were working for the Special Investigations Unit of the Ramsey County Sheriff’s Office (RCSO). In Sept ember, the FBI began investigating Rehak for corruption. On November 3, it conducted an “integrity test.”

The FBI rented a room at the Kelly I nn under the (fictitious) name of Vincent Pelligatti, placing $13,500 in cash in a duffe l 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 r ecover 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 th e 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 Inves tigations sergeant, told him they had received information of narco tics and cash in the hotel r oom, and asked him to get a search warrant. When Sergean t Martinez arrived at the hotel to investigate, he found-3- 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 Serg eant 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 Sergean t Martinez returns to the main room, Rehak purports to begin searching the bag and pu lls 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 ba g. 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 outsi de the hotel room; Rehak left in his car. A few minutes later, a deputy arrive d 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 se ized. 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.-4- That evening, according to MinnesotaBureau 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 a dditional $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 heknew 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 co ntacted Rehak, saying that a drug trafficker had left drugs and money in a vehicl e. FBI agents observed Reh ak 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 conduc ting surveillance on the vehicle. At 5:30 p.m., Rehak-5- 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 substantia l 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.” Th ey walked a short distance away from the car, talking briefly. Returning to the car, they discu ssed 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 si x counts of honest services wire fraud, in violation of 18 U.S.C. §§ 1343 and 1346; onecount 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 ju ry acquitted on the wire fraud counts. It convicted both men of conspiring to violate civil rights, and theft of government property. The jury apparen tly 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 a nd Naylon intended to steal the money, but later changed their minds and decided to return it.

II.

Defendants contend that there is in sufficient 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-6- view the evidence in the light most favorab le to the government, resolving evidentiary conflicts in favor of the government, a nd 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 [t o] conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoym ent of any right or privilege secured to him by the Constitution orlaws of the United States.” 18 U.S.C. § 241

. Rehak and Naylon were convi cted 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 obj ective 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 defe nse 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 failureof 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 cons piracy convictions for receiving money to influence officialconduct 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).-7- In this case, the objective of defendants was to take th e 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 purpos es funds lawfully seized from suspected criminals violate those criminals’ civil ri ghts). 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. Wh ile 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 Reh ak and Naylon conspired to take the money in violation of Pelligatti’s due pro cess 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 cooperati ng 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 sear ch 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 sec ond 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 conspireto violate Pelligatti’s rights, because if the facts were as they believed, the money was drug money subject to forfeiture.-8- Even if defendants believed the money wa s forfeitable, agreeing to convert it to personal use, rather than following forfeitureprocedures, is sufficient for conviction under 18 U.S.C. § 241. See McClean , 528 F.2d at 1255-56. Alte rnatively, defendants argue that they believed Pelligatti abandone d his money and therefore had no rights to it. This argument is contrary to the ju ry’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 thei r conduct violated a fe deral civil right. See United States v. Lanier , 520 U.S. 259, 267-68 (1997). Relying on Fourth Amendment search-and-seizure cases, defendants argue thatsince 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 indictme nt here charged a conspiracy to deprive property without due process of law. In th is 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 c ourt 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 th at the district court has wide discretion in formulating the instructions, and we will affirm if the en tire 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.-9- A.

Defendants contend the district court e rred in failing to define “due process” for the jury. The court instructed the ju ry that defendants must have reached “an understanding to injure a pers on in Minnesota in the enjoyment of his civil rights.” The court further stated that to agree to in jure a person in the en joyment 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 “i s 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-deprivati on 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 c ourt 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. De fendants 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 instruc tion would also inaccurately state the law.

B.
Defendants also argue the district court e rred in its instructions on the theft-ofgovernment-property charge. The statute provides: “Whoever . . . steals . . . or-10- knowingly converts to his use orthe 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 pr operty as charged in Count 7 has three essential elements, which are:

One , the defendant voluntarily, inte ntionally, and knowingly stole or converted money to his own use or to the use of another;

Two , the defendant acted with the intentto 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 w ith 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 th e property as well as through its use in an unauthorized manner or to an unauthorized extent. With respect to the second element – th at 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 errone ous in two ways. First, the jury could convict even if it found that defendants in tended only to take the money temporarily. They proposed the following instruction:2Defendants 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 “s erious 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 defendant s “acted with the intent to deprive the owner of the use or benefit of the money so taken.”

-11- 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 la w 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. 2-12- Finally, Defendants argue that the distri ct court committed plain error, Fed. R. Crim. P. 52(b), by instructing that “the gove rnment 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, ‘the re 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 subse quently listed elements of the crime.” Flores-Figueroa , 129 S. Ct. at 1890. Therefore, th e government must prove that the defendant knew that the “means of identif ication” 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 ow ned by the United States. The context of section 641 defeats this interpretation. C ourts have consistently held that the government is not required to prove a de fendant knew the prope rty he stole was owned by the United States because the Unite d States’ ownership merely provides the-13- 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 Howeycase explains:

It was not an essential part of the co mmon 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 th ief know who owned th e property he was stealing. The reason for including the requirement th at the property, in fact, belongs to the Government was to state the f oundation for federal jurisdiction. A defendant’s knowledge of the jurisdictional fact is irre levant, 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 conspiracyto 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 wa s not yet 18, stating that Flores-Figueroa did not apply in this context). The distri ct court correctly instructed the jury that the government was not required to prove the defendant s knew the money was owned by the United-14- States. In sum, the district court’s instru ctions 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 Pe lligatti left drug money in a hotel room, and they agreed to steal part of it. U nbeknownst to them, the money belonged to the government. The verdicts are not internally inconsistent.

VI.
Defendant Rehak objects that the districtcourt 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 distri ct court must make findings that the defendant willfully gave false te stimony concerning a material matter in the case.” Id.-15- 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. Nayl on 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 constitu tes perjury.” I further find that Mr. Rehak’s false testimony related a materi al matter and was done willfully rather than out of confusion, mistake, or fau lty memory. I have already described the basis for this finding, when I describe d 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, th e 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 whenthe 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 evid ence 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.