United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 19-3683

___________________________ 

United States of America

 Plaintiff - Appellee

v.

Chad Eric Mink, also known as Chad Mink

 Defendant - Appellant

____________

Appeal from United States District Court 

for the Southern District of Iowa - Davenport

____________ 

Submitted: March 16, 2021

Filed: August 12, 2021

____________ 

Before SHEPHERD, ERICKSON, and KOBES, Circuit Judges. 

____________

SHEPHERD, Circuit Judge.

A jury found Chad Eric Mink guilty on all counts of a 15-count indictment, 

and the district court sentenced him to 600 months imprisonment. Mink appeals his 

convictions and sentence. Having jurisdiction under 28 U.S.C. § 1291, we vacate 

Mink’s conviction on Count 8, affirm his convictions on the remaining counts, and 

vacate his sentence in its entirety so that the district court may reconfigure Mink’s 

sentencing plan to guarantee that his sentence satisfies the 18 U.S.C. § 3553 factors.
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I. 

“We recite the facts in the light most favorable to the jury’s verdict.” United 

States v. Galloway, 917 F.3d 631, 632 (8th Cir. 2019) (citation omitted).

This case arises out of Mink’s incessant and extreme harassment of his exgirlfriend, L.L., and her partner, D.B., after Mink and L.L.’s relationship ended in 

2013.1

 The events began on October 11, 2013, when Mink allegedly stabbed L.L. 

in the ear with a fork while she was asleep. Mink told law enforcement that L.L. 

had been drinking and must have fallen on the fork, but a preliminary breath test 

revealed L.L.’s blood alcohol concentration to be 0.000. On November 14, 2013, 

D.B. discovered that someone had vandalized his car while parked at “Group O,” an 

Illinois business where D.B. and L.L. worked. That same day, L.L. noticed a strong 

odor in her house: someone had placed mothballs near the furnace and blocked the 

exhaust pipe with plumber’s putty. The following day, a Group O employee 

witnessed a red box truck drive around the business and leave. That evening, as L.L. 

and D.B. were returning from their break together, that same truck collided with 

D.B.’s car, damaging the driver’s side. The truck entered a nearby field, and the 

driver fled the scene on foot. Responding to the incident, law enforcement stopped 

a nearby van. Mink was in the backseat wearing wet, muddy clothes and Adidasbrand shoes, matching the shoe impressions taken near the abandoned truck. Mink 

told law enforcement that he had been walking home from a nearby bar and called 

the van’s driver for a ride. Later, Mink changed his story, telling law enforcement 

that he had permission to drive the box truck; however, subsequent investigation 

revealed that the truck had been stolen from a Davenport business. A day later, on 

November 16, 2013, L.L.’s sister discovered a “pipe bomb”—a steel pipe with 

endcaps containing an oily residue, a balloon, and some aluminum foil—in the 

backseat of her car. After this incident, L.L. moved with D.B. from her Milan, 

Illinois residence to Davenport, Iowa, near the Holy Family Cemetery (HFC). 

1

Prior to the events at issue, Mink had been convicted of multiple felonies in 

Illinois, including burglary in 1991, 1994, 1997, and 2007; unlawful use of weapons 

by a felon in 1994; and arson in 1994.
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Mink was employed at “Fol-Da-Tank,” a Milan, Illinois business. One of 

Mink’s coworkers, a Leclaire, Iowa resident, kept a Springfield XD .45 caliber semiautomatic pistol in his truck and claimed that Mink was aware of the pistol. The 

coworker later reported the pistol missing. On November 18, 2013, Mink reported 

that his van was shot at while driving to work and told law enforcement that he 

suspected D.B. had been the shooter, among other possible suspects. Law 

enforcement later recovered two Hornady “Zombie Max” .45 caliber bullets from 

Mink’s van. Mink subsequently told another individual that he shot his own van, 

blamed it on D.B., and buried the pistol. 

 

On April 14, 2014, a groundskeeper at Rock Island High School, located in 

Rock Island, Illinois, discovered a white trash bag containing 19 books, including:

The Anarchist Cookbook;

The Anarchist Arsenal: Improvised Incendiary and Explosives 

Techniques;

Black Medicine: The Dark Art of Death;

Black Medicine Volume II: Weapons at Hand;

Black Medicine Volume III: Low Blows;

Black Medicine Volume IV: Equalizers;

Serial Killers and Murderers;

The Hayduke Silencer Book: Quick and Dirty Homemade Silencers;

Homemade Semtex: C-4’s Ugly Sister;

Homemade C-4: A Recipe for Survival;

How to Build Practical Firearm Suppressors: An Illustrated Step-byStep Guide;

How to Create a New Identity;

How to Disappear Completely and Never Be Found;

How to Make Disposable Silencers: A Complete Guide;

How to Make Disposable Silencers Volume II: A Complete Illustrated 

Guide;

Improvised Munitions Black Book Volume 3;

New I.D. in America: How to Create a Foolproof New Identity; 

Privacy: How to Get It. How to Enjoy It; and

Ragnar’s Homemade Detonators: How to Make ‘Em, How to Salvage 

‘Em, How to Detonate ‘Em. 
-4- 

R. Doc. 220, 70-80. These books contained information such as how to build pipe 

bombs and other explosives, how to create a silencer, and how to puncture the ear in 

such a way that causes severe pain. A fingerprint examiner determined that one of 

the latent fingerprints discovered on the books was left by Mink, and Mink later 

admitted to law enforcement that the books were his and that he had read them. 

 On March 19, 2015, a man was searching for shed deer antlers at HFC when 

he discovered a blue drawstring backpack. Upon inspecting the bag, the man 

identified what he believed to be pipe bombs inside. The man notified law 

enforcement, and the Quad City Bomb Squad responded to the scene. Subsequent 

investigation determined that the backpack contained three 12-inch, galvanized steel 

pipes with 1.25-inch endcaps, which were drilled for the insertion of a fuse. One 

pipe had a set of alternating nails attached by colored rubber bands and black zip ties 

and was additionally wrapped with a strand of more than 200 hex nuts. This pipe 

further contained a circuit board, an Estes-brand model rocket igniter system, and a 

black powder—presumably Pyrodex, an explosive substance recovered from a 

Ziplock bag in the backpack. A subsequent laboratory examination established that 

the pipes were destructive devices. Law enforcement also discovered in the 

backpack six rounds of Hornady “Zombie Max” .45 caliber ammunition, one 

expended cartridge casing of the same ammunition, and a white trash bag matching 

the one containing the 19 books. On April 5, 2019, a “treasure hunter,” who 

canvassed public areas with a metal detector, discovered a .45 caliber pistol wrapped 

in black garbage bags and duct tape buried near Rock Island High School. Law 

enforcement later determined that the pistol was Mink’s coworker’s missing pistol, 

although the original barrel had been replaced with an “after-market” barrel. 

L.L. and D.B. eventually moved to another Davenport residence, but after that 

residence was burglarized, the couple moved into Room 120 at the Quad City Inn in 

Davenport. On February 21, 2016, a motel employee discovered two pipe bombs 

between Rooms 119 and 120. The pipe bombs were 12-inch, galvanized steel pipes 

with endcaps and resembled those discovered at HFC, likewise containing Pyrodex 

and sets of alternating nails held together by colorful rubber bands and zip-ties. L.L. 
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told law enforcement that she had seen Mink in the motel parking lot earlier. 

Subsequent investigation revealed that Mink had rented a blue, 2015 Chevrolet 

Spark at the Quad City Airport in Moline, Illinois, on February 20, 2016. Video 

surveillance from surrounding businesses showed a blue Chevrolet Spark, or a 

similar car, driving near the Quad City Inn around 10:00 pm that night. On the 

afternoon of February 21, 2016, when the bomb was discovered, Mink and a friend 

drove the Chevrolet Spark to Milan, Michigan, where Mink was to self-report the 

following day to Federal Correctional Institution, Milan (FCI Milan) for an unrelated 

2016 conviction. That evening, Mink sent the following email to the City of 

Davenport:

From: Nomen Nescio [mailto:nobody@dizum.com] 

Sent: Sunday, February 21, 2016 10:44 PM

To: City of Davenport Web E-mail 

Subject:

Me n [D.B.] made a cuuple of bombs just playing arond we never 

intended to hurt anyone. D forgot to put the bomb away. We set off a 

couple when we were getting fish one night and by the qc inn. We 

accidently forgot one over by the miss fairgrounds. I didn’t know the 

serious of what we were doing until I read about it. I woold come 

forward but will i be charged?.

R. Doc. 224, at 46. Mink admitted to law enforcement that he sent this email, 

although he later denied doing so at trial. Further investigation of Mink’s laptop 

revealed that it had been used on February 21, 2016, to access news articles 

concerning the Quad City Inn bombs and the Davenport Emergency Services Team 

page. R. Doc. 219, at 351. In the past, the laptop had also been used to view pages 

such as: “Estes Alpha III model rocket starter set construction video”; “Paladin 

Press,” a publisher of books similar to those found at Rock Island High School; 

“How to Track Down Anyone Online”; “DEADLIEST POISONS”; and “How to 

Vanish with a New Identity.” See R. Doc. 219, at 313-50. 
-6- 

On February 24, 2016, law enforcement met with R.S., an individual who

lived with Mink’s mother until her passing in 2013. R.S. surrendered to law 

enforcement a safe that Mink had given him prior to reporting to FCI Milan. The 

safe contained a magazine loader for a firearm, a lockpick set, and a Solvent Trap 

Adaptor, which can be used to attach a silencer to a firearm. That same day, law 

enforcement met with the individual who accompanied Mink to FCI Milan in the 

rental car. The individual provided law enforcement with Mink’s backpack, which 

included Mink’s laptop, a vehicle tracking device, and Mink’s wallet. The wallet 

contained a Metabank debit card. Metabank records disclosed that the card was 

opened under Mink’s email address, physical address, and phone number; however, 

the name, birthdate, and social security number associated with the card belonged to 

a Bettendorf, Iowa resident, T.S. Mink was familiar with but had not met T.S., nor 

had he been authorized to open an account using T.S.’s information. Mink used the 

card to purchase two Springfield XD 4.7-inch threaded replacements (“after-market” 

barrels) and a Solvent Trap Adapter. Mink also used the card and T.S.’s information 

to purchase online services from PeopleFinders. 

On March 11, 2016, Mink called Donald Stevens, his biological father, from 

FCI Milan. Mink directed Stevens to retrieve an item from Mink’s jacket, which 

Mink had left at Stevens’s residence. Mink then directed Stevens to destroy the item 

and to scatter the pieces around the neighborhood. Stevens did as Mink instructed. 

Stevens later testified that he believed the item was a detonator. On April 18, 2016, 

Mink again called Stevens and asked him to sign a prewritten affidavit establishing 

an alibi for Mink, see R. Doc. 224, at 107-10, to which Stevens responded that such 

an affidavit would be “perjury.” Additionally, Mink sent three letters to Stevens, 

one of which asked Stevens to take blame for Mink’s conduct in order to “throw a 

big monkey wrench” in the government’s case. See R. Doc. 224, at 76-77.

On December 14, 2016, a Fol-Da-Tank employee discovered a pistol barrel 

tucked behind some insulation in the company’s walls. The serial number on the 

barrel matched the Springfield XD .45 caliber semi-automatic pistol reported 

missing by Mink’s coworker. Containers of dimethyl sulfoxide (DMSO) and zinc 
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phosphide, a compound commonly used in rat poisoning, were also discovered in 

the walls.

On November 8, 2017, a grand jury returned a 15 count indictment, charging

Mink with: one count of interstate transportation of a stolen motor vehicle in 

violation of 18 U.S.C. §§ 2312 and 2 (Count 1); two counts of stalking in violation 

of 18 U.S.C. § 2261A (Counts 2 and 9); two counts of interstate domestic violence 

in violation of 18 U.S.C. § 2261(a)(1) (Counts 3 and 10); two counts of receipt and 

possession of an unregistered destructive device in violation of 26 U.S.C. §§ 5841, 

5861(d), and 5871 (Counts 4 and 12); two counts of being a prohibited person in 

possession of an unregistered destructive device in violation of 18 U.S.C. §§ 842(i) 

and 844(a) (Counts 5 and 13); one count of fraudulent use of a means of 

identification of another person in violation of 18 U.S.C. § 1028(a)(7) (Count 6); 

one count of malicious use of explosive materials in violation of 18 U.S.C. § 844(i) 

(Count 7); one count of possession of a firearm in furtherance of a crime of violence 

in violation of 18 U.S.C. § 924(c)(1)(A) (Count 8); one count of using explosive 

materials during the commission of a federal felony in violation of 18 U.S.C. 

§ 844(h) (Count 11); one count of tampering with a witness in violation of 18 U.S.C. 

§ 1512(b)(2)(B) (Count 14); and one count of obstruction of an official proceeding 

in violation of 18 U.S.C. § 1512(c)(2) (Count 15). Counts 1-3 concerned the stolen 

box truck and subsequent vehicular assault; Counts 4-5 concerned the pipe bomb 

discovered at HFC; Count 6 concerned Mink’s unlawful use of T.S.’s means of 

identification; Counts 7-13 concerned the pipe bombs discovered at the Quad City 

Inn; and Counts 14-15 concerned Mink’s obstruction of justice. Mink pled not guilty 

on all counts.

 Before trial, Mink stipulated that, prior to the conduct alleged in the 

indictment, he “had been convicted of a crime punishable by a term of imprisonment 

exceeding one year.” R. Doc. 221, at 53. Mink moved to sever counts in the

indictment for trial pursuant to Federal Rules of Criminal Procedure 8(a) and 14. 

Based on the timing of the alleged conduct, Mink argued that the indictment should 

be severed as follows: Counts 1-3; Counts 4-5; Count 6; and Counts 7-15. The 
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district court denied Mink’s motion, finding that the counts described a common 

motive, plan, and preparation. Mink also filed motions in limine to exclude evidence 

of the uncharged conduct, i.e., the vandalism of D.B.’s car, the placement of putty 

in L.L.’s exhaust pipe, the placement of the pipe bomb in L.L.’s sister’s car, and the 

theft of Mink’s coworker’s firearm. The district court found that this evidence 

provided context and was circumstantial evidence of the charged conduct, and it 

accordingly denied the motion. Mink also filed a motion in limine to exclude 

evidence of his incarceration at FCI Milan. The district court denied Mink’s motion

because it found that such evidence would be material to the obstruction of justice 

charge but noted that it would “use strong and appropriate limiting instructions in an

attempt to cure potential unfair prejudice as a result of this evidence.” R. Doc. 152, 

at 3. After the parties rested their cases at trial, Mink moved for a judgment of 

acquittal; the district court denied the motion and submitted the matter to the jury. 

The jury convicted Mink on all counts. The district court sentenced Mink to 120 

months imprisonment on each of Counts 1-5, 9-10, and 12-13; 60 months 

imprisonment on Count 6; and 240 months imprisonment on each of Counts 7 and 

14-15; all of which were to run concurrently. The district court sentenced Mink to 

360 months imprisonment on Count 8, to run consecutively to Count 7, and 120 

months imprisonment on Count 11, to run consecutively to Counts 9 and 10. This 

resulted in a total term of 600 months imprisonment. Mink appeals his conviction 

and sentence on multiple grounds.

II. 

Mink asserts that venue was improper in the Southern District of Iowa as to 

Count 6. “[I]mproper venue can be waived,” United States v. Morrissey, 895 F.3d 

541, 550 (8th Cir. 2018) (citation omitted), and Mink did not raise the issue before 

the district court. However, the record does not indicate that Mink made any 

affirmative waiver of this argument, so we view the failure to raise the issue as 

inadvertent. Compare United States v. McCorkle, 688 F.3d 518, 522 (8th Cir. 2012) 

(treating defendant’s failure to challenge venue below as inadvertent when the 

record did not indicate that he “expressly or intentionally abandoned his right to 
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object to venue”) with Morrissey, 895 F.3d at 550-51 (finding that defendant waived 

the issue of venue when he declined a jury instruction on venue and stated that it was 

not at issue). Therefore, we construe such inadvertent failure as forfeiture and 

review the challenge on appeal for plain error. See McCorkle, 688 F.3d at 522. 

Accordingly, Mink “must show that there was an error, the error is clear or obvious 

under current law, the error affected [his] substantial rights, and the error seriously 

affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

(citation omitted). 

“‘Proper venue is required by Article III, § 2 of the United States Constitution 

and by the Sixth Amendment, as well as Rule 18 of the Federal Rules of Criminal 

Procedure.’ A federal crime may be prosecuted in any district in which such offense 

began, continued, or was completed.” United States v. Banks, 706 F.3d 901, 904 

(8th Cir. 2013) (citations omitted). The locus delicti, or the place of the wrong, 

“must be determined from the nature of the crime alleged and the location of the act 

or acts constituting it.” United States v. Cabrales, 524 U.S. 1, 6-7 (1998) (citation 

omitted). “In performing this inquiry, a court must initially identify the conduct 

constituting the offense (the nature of the crime) and then discern the location of the 

commission of the criminal acts.” United States v. Rodriguez-Moreno, 526 U.S. 

275, 279 (1999). As such, only “essential conduct elements,” rather than 

“circumstance element[s],” may serve as the basis for venue. See id. at 280 & n.4; 

see also United States v. Auernheimer, 748 F.3d 525, 533 (3d Cir. 2014). “Venue 

ordinarily is a question of fact for the jury and must be instructed upon if in issue.” 

United States v. Jaber, 509 F.3d 463, 466 (8th Cir. 2007). The government must 

establish venue “by a preponderance of the evidence.” Morrissey, 895 F.3d at 550.

Here, the jury was instructed to find whether the “offenses charged were 

begun, continued or completed in the Southern District of Iowa,” R. Doc. 207, at 18, 

and “[a] jury is presumed to follow its instructions,” United States v. Thomas, 877 

F.3d 1077, 1079 (8th Cir. 2017) (citation omitted). Mink nonetheless argues that the 

jury could not have found that venue was proper as to Count 6 because he applied

for, received, and used the fraudulent debit card in Illinois. Mink’s argument fails 
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as a matter of law. Mink was charged with fraudulently using the means of 

identification of another person with the intent to commit another felony under 18 

U.S.C. § 1028(a)(7), which states:

Whoever . . . knowingly transfers, possesses, or uses, without lawful 

authority, a means of identification of another person with the intent to 

commit, or to aid or abet, or in connection with, any unlawful activity 

that constitutes a violation of Federal law, or that constitutes a felony 

under any applicable State or local law . . . shall be punished as provided 

in . . . this section.

Mink argues that the essential conduct elements of the offense are confined to the 

transfer, possession, and use of the means of identification and that all those 

events—Mink’s application, receipt, and use of the fraudulent debit card—occurred 

in Illinois. However, to prove the charged § 1028(a)(7) violation in Mink’s case, the 

government was required to show that Mink used the means of identification “with 

the intent to commit, or to aid or abet, or in connection with” a felony. The grand 

jury charged Mink with the predicate felony of being a felon in possession of a 

firearm in violation of 18 U.S.C. § 922(g)(1). Accordingly, § 1028(a)(7) has “two 

distinct conduct elements”: (1) the transfer, possession, or use of a means of 

identification of another person; and (2) as relevant to Mink’s case, that he was a 

felon in possession of a firearm. See Rodriguez-Moreno, 526 U.S. at 280 (finding 

that a predicate felony was an essential conduct element for venue purposes when 

the government was required to show that the defendant committed the charged 

crime “during and in relation to” the predicate felony (citation omitted)); id. (“That 

the [predicate felony] element of the statute is embedded in a prepositional phrase 

and not expressed in verbs does not dissuade us from concluding that [the predicate 

felony] [is an] essential conduct element[].”). 

Therefore, venue is proper not only in any district where Mink used the means 

of identification but also in any district where he illegally possessed the firearm. The

jury was permitted to find that venue was proper in the Southern District of Iowa on

either basis. Even if Mink’s use of the means of identification did not support the 
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jury’s venue determination, he offers no argument with respect to the predicate 

felony. Cf. United States v. Boyle, 700 F.3d 1138, 1143 (8th Cir. 2012) (“[W]hen 

one theory of conviction is supported by sufficient evidence and another is not, a 

reviewing court presumes that the jury convicted on the supported theory.”). 

Because Mink challenges only one of the two possible bases for the jury’s 

determination, his argument “fails as a matter of law[,] and we have no basis for 

overturning the jury’s finding that venue was proper in the Southern District of 

Iowa.” Cf. United States v. Nguyen, 608 F.3d 368, 374 (8th Cir. 2010) (upholding 

the jury’s verdict in a conspiracy charge when defendant failed to challenge other 

bases for the jury’s finding). 

III. 

Mink contends that various counts of his conviction are multiplicitous of 

others in violation of the Double Jeopardy Clause of the Fifth Amendment. See

United States v. Sandstrom, 594 F.3d 634, 651-52 (8th Cir. 2010). Specifically, he 

argues that Count 7 is multiplicitous of Count 11, Count 9 is multiplicitous of Count 

10, and Counts 4 and 12 are multiplicitous of Counts 5 and 13. However, Federal 

Rule of Criminal Procedure 12(b)(3)(B)(ii) requires defendants to raise multiplicity 

challenges before trial “if the basis for the motion is then reasonably available and 

the motion can be determined without a trial on the merits.” Fed. R. Crim. P. 

12(b)(3)(B)(ii); see also United States v. Bravebull, 896 F.3d 897, 899 (8th Cir. 

2018). Here, Mink challenges the multiplicity of the counts only on the basis that 

the statutes require proof of identical elements in violation of Blockburger v. United 

States, 284 U.S. 299 (1932). See Sandstrom, 594 F.3d at 654. Because this legal 

challenge to the indictment could have been asserted and decided before a trial on 

the merits, it is untimely and accordingly waived unless Mink can “show[] good 

cause for the tardiness.” Bravebull, 896 F.3d at 899; see also United States v. Fry, 

792 F.3d 884, 888 (8th Cir. 2015). Mink “has not shown good cause, so we decline 

to address [his] argument.” See Bravebull, 896 F.3d at 899.
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IV. 

Next, Mink contends that, pursuant to Federal Rule of Criminal Procedure 

8(a), the government was required to have charged Counts 1-3 through a separate 

indictment. “We review de novo a decision to join counts together into a single 

indictment.” United States v. Colbert, 828 F.3d 718, 728 (8th Cir. 2016) (citation 

omitted). Joinder of offenses under Rule 8(a) is permissible when multiple offenses 

“are of the same or similar character, or are based on the same act or transaction, or 

are connected with or constitute parts of a common scheme or plan.” Id. (quoting 

Fed. R. Crim. P. 8(a)). “The propriety of joinder is . . . determined from the face of 

the indictment.” United States v. Reichel, 911 F.3d 910, 915 (8th Cir. 2018) 

(alteration in original) (citation omitted). “The rule is broadly construed in favor of 

joinder to promote judicial efficiency.” United States v. Madkiff, 614 F.3d 431, 439 

(8th Cir. 2010) (citation omitted). 

Here, Mink argues that Counts 1-3—involving the stolen box truck and 

subsequent vehicular assault—share nothing in common with the remaining counts 

except that L.L. and D.B. were the victims and Mink was the alleged perpetrator. 

He contends the government’s theory that Mink engaged in a common scheme to 

harass L.L. and D.B. rested on evidence later presented at trial rather than on the 

face of the indictment. However, “[t]he government is not required to put on a full 

court press on the evidence” for the counts to be properly joined at the outset. United 

States v. McCarther, 596 F.3d 438, 442 (8th Cir. 2010). The indictment sufficiently 

connected the counts together with recurring dates, similar conduct and victims, and 

references to other counts. While the indictment did not explicitly allege a common 

scheme, we find that the multiple alleged offenses were properly connected by these 

common characteristics into a common scheme or plan to harass, stalk, or otherwise 

harm L.L. and D.B. in satisfaction of Rule 8(a). Counts 1-3 fall within that common 

scheme or plan. Accordingly, we find that the district court did not err in permitting 

joinder of the offenses.
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Additionally, Mink argues that severance under Federal Rule of Criminal 

Procedure 14(a) was necessary to prevent prejudice. As stated in his motion to sever, 

Mink argues that the indictment should have been severed as follows: Counts 1-3; 

Counts 4-5; Count 6; and Counts 7-15. See R. Doc. 36, at 2-3. “Rule 14 allows for 

severance at trial if joinder ‘appears to prejudice a defendant.’” Reichel, 911 F.3d 

at 915 (quoting Fed. R. Crim. P. 14(a)). “We review a district court’s denial of a 

severance motion for abuse of discretion, and ‘we will reverse only when that abuse 

of discretion results in severe or clear prejudice.’” Colbert, 828 F.3d at 728 (citation 

omitted).2 Severe or clear prejudice requires that a defendant show that he “would 

have had ‘an appreciable chance for an acquittal’ in a severed trial.” Reichel, 911 

F.3d at 915 (citation omitted). “No prejudice results from the refusal to sever when 

evidence of one charge would be admissible in a separate trial on the other. Finally, 

there is a strong presumption against severing properly joined counts.” McCarther, 

596 F.3d at 442 (citation omitted). 

Here, Mink cannot overcome the strong presumption against severance 

because evidence of each charge would be admissible against him in a separate trial 

for another charge. He argues that each independent charge layers bad conduct 

against him in violation of the Federal Rules of Evidence 403 and 404(b). However, 

under Rule 404(b), evidence of past bad acts is nonetheless admissible to prove, 

nonexclusively, “motive, opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2); see also United 

2

The government contends that we should review Mink’s claims under the 

more rigorous plain error standard because Mink did not renew his motion to sever 

at the close of evidence. However, “[a] renewed motion for severance is unnecessary 

when the facts raised by a defendant in his or her pretrial motion do not materially 

differ from the facts that are admitted at trial.” See United States v. Crumley, 528 

F.3d 1053, 1062 (8th Cir. 2008). Only “when the trial produces a material change 

in the facts” must the motion to sever “be renewed so that the trial court can rule on 

the motion with the benefit, and in light of, knowledge of the true (and changed) 

situation.” Id. (citation omitted). We need not decide which level of review is most 

appropriate in Mink’s case because we find that his argument fails even under the 

more lenient abuse of discretion standard.
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States v. Wright, 993 F.3d 1054, 1061 (8th Cir. 2021). As described above, each 

charge alleges a step in Mink’s plan to harass L.L. and D.B., which in turn 

establishes his motive, preparation, plan, and identity for the other charges. Further, 

we find that the probative value of this evidence is not substantially outweighed by 

unfair prejudice. Fed. R. Evid. 403. This is not the kind of evidence that “divert[s]

the jury’s attention from the material issues in the trial” but rather aids the jury by 

establishing Mink’s motive, plan, and identity throughout the events. Wright, 993 

F.3d at 1061 (“Rule 403 does not offer protection against evidence that is merely 

prejudicial in the sense of being detrimental to a party’s case. The rule protects 

against evidence that is unfairly prejudicial.” (citation omitted)). 

Next, Mink argues that the inclusion of Counts 5 and 13 (being a prohibited 

person in possession of an unregistered destructive device) unfairly prejudiced him 

as to the remaining counts because Counts 5 and 13 required the government to 

prove that Mink is a felon. Because he raises this argument for the first time on 

appeal, we review for plain error. Under the plain error standard of review in the 

severance context, “the defendant must ‘show, in addition to an abuse of discretion

by the district court, prejudice affecting his or her substantial rights and some 

extraordinary reason for us to reverse.’” Crumley, 528 F.3d at 1062-63 (citation 

omitted). He contends the joinder of these counts with the others runs afoul of our 

decision in United States v. Aldrich, where we stated, “[E]vidence that [the 

defendant] is a felon [is] of the inflammatory sort that may . . . sway[] the jury to 

convict him of the other charges even if the evidence [does] not support[] those 

charges.” 169 F.3d 526, 529 (8th Cir. 1999) (second alteration in original) (citation 

omitted). 

However, the issue in Aldrich was one of “retroactive misjoinder,” which 

occurs “when joinder of multiple counts was proper initially, but later 

developments . . . render the initial joinder improper.” Id. at 528 (alteration in 

original) (citation omitted). There, the defendant was convicted of two felon-inpossession charges and one charge of possessing an illegal firearm. Id. at 527. After 

the jury trial, the government and the defendant discovered that—before the 
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defendant’s possession of the firearm—the state had restored all of the defendant’s 

“rights, privileges and immunities” that were previously forfeited as a result of his 

prior felony. See id. at 527. The defendant filed a motion for a new trial, arguing 

that his two felon-in-possession convictions should be vacated based on the prior 

restoration of his rights and “that the evidence of his prior felony unfairly prejudiced 

his right to a fair trial” on the remaining count. Id. The district court granted the 

vacatur as to the defendant’s felon-in-possession convictions but denied the 

defendant a new trial on the remaining count. Id. at 528. On appeal, the defendant 

argued that “the evidence of his prior felony conviction had a sufficiently prejudicial

spillover effect to deprive him of a fair trial” on the remaining count, and we agreed. 

Id. The government should not have prosecuted the felon-in-possession charges, 

and “the jury should have never heard evidence concerning [the defendant’s] prior 

felony conviction.” Id. at 529. We found that the defendant suffered clear prejudice 

because the evidence of his prior conviction “divert[ed] the attention of the jury from 

the question of the defendant’s responsibility for the crime charged to the improper 

issue of his bad character.” Id. at 528 (citation omitted). 

Here, Mink does not suffer from the same prejudice even under the typical 

abuse of discretion standard. First, his case is not one of retroactive joinder where 

his prior conviction was admitted under a now-vacated or -dismissed charge. 

Second, he stipulated to his status as a felon without any additional detail of his past 

felonies, which minimizes the prejudicial effect, if any, on his other convictions. See

United States v. Rock, 282 F.3d 548, 552 (8th Cir. 2002). Finally, he has not shown 

that he would have had “an appreciable chance for acquittal” on the other charges 

absent his stipulation to his prior felony conviction. Because Mink cannot show 

prejudice, much less an extraordinary reason for reversal, we find that the district 

court did not plainly err in refusing to sever the indictment.

V.

Next, Mink argues that the district court erred in admitting evidence revealing 

that he was incarcerated at the time of the conduct alleged in Counts 14 and 15. 
-16- 

When, as here, the district court definitively rules on a party’s in limine objection to 

the admission of evidence, we review for abuse of discretion. See United States v. 

Collier, 527 F.3d 695, 698-99 (8th Cir. 2008); United States v. Big Eagle, 702 F.3d 

1125, 1130 (8th Cir. 2013) (“Under the Federal Rules of Evidence, ‘[o]nce the court 

rules definitively on the record’ concerning a party’s in limine objection to 

admission of evidence, ‘a party need not renew an objection or offer of proof to 

preserve a claim of error for appeal.’” (alteration in original) (quoting Fed. R. Evid. 

103(b))). We “will reverse only if admission [of the evidence] affected [the 

defendant’s] substantial rights.” United States v. Watson, 895 F.3d 589, 594 (8th 

Cir. 2018). Mink argues that proof of his incarceration greatly influenced the jury’s 

deliberation on Counts 1-13 in violation of Federal Rule of Evidence 403. Rule 403 

“grants the district court power to exclude relevant evidence ‘if its probative value 

is substantially outweighed by a danger of . . . unfair prejudice.’ ‘Unfair prejudice 

means an undue tendency to suggest decision on an improper basis, commonly, 

though not necessarily, an emotional one.’” Id. (alteration in original) (citations 

omitted). Here, the fact that Mink was incarcerated had probative value as it 

provided context to the government’s narrative and connected Mink to the Quad City 

Inn pipe bombs. On February 20, 2016, Mink rented a blue Chevrolet Spark to drive 

to FCI Milan; video surveillance shows a similar car driving near the Quad City Inn

that same day. The next day, pipe bombs were discovered at the Quad City Inn. 

That Mink was incarcerated was also necessary to provide context to Mink’s 

obstruction of justice charges because Mink instructed Stevens to destroy evidence 

and sign a false affidavit through letters and phone calls from FCI Milan.

Moreover, this probative value was not substantially outweighed by potential 

prejudice. In denying the motion, the district court said that it would “use strong 

and appropriate limiting instructions in an attempt to cure potential unfair prejudice 

as a result of this evidence.” R. Doc. 152, at 3. The district court did in fact instruct 

the jury accordingly. R. Doc. 296, at 69-70 (explaining to the jury that it could not 

“infer from the fact that someone [had] previously been convicted of a crime that 

they must have committed others in the future” and that it could “use [the] evidence 

for the purpose for which it [was] admitted to demonstrate,” which was “some 
-17- 

motive for when things happened and for no other purpose”). “[T]he presence of a 

limiting instruction diminishes the danger of any unfair prejudice arising from the 

admission of other acts.” United States v. Buckner, 868 F.3d 684, 690 (8th Cir. 

2017) (alteration in original) (citation omitted); see also Wright, 993 F.3d at 1064 

(“[A] jury is presumed to follow all instructions.”). Therefore, because the evidence 

was probative and the district court issued proper limiting instructions, we find that 

the district court did not abuse its discretion in admitting evidence showing that 

Mink was incarcerated. 

VI. 

Next, Mink argues that the district court erred in admitting evidence of 

uncharged conduct, including evidence that someone vandalized D.B.’s car, that 

someone placed putty in L.L.’s home exhaust pipe, that someone placed a pipe bomb 

in L.L.’s sister’s car, and that someone stole his coworker’s firearm. According to 

Mink, this evidence, coupled with the timing of the acts in relation to the charged 

conduct and their similarity to the same, gave rise to the inference that Mink was the 

individual behind these acts. Specifically, Mink argues that this evidence constitutes

impermissible propensity evidence under Rule 404(b) and that it was substantially 

more prejudicial than probative in violation of Rule 403. Unlike the district court’s 

definitive ruling on the admission of evidence showing that Mink was incarcerated, 

here the district court only tentatively admitted evidence of the uncharged conduct. 

R. Doc. 152, at 1 (“[T]he court is satisfied that if [the evidence] is presented in such 

a way as to permit the jury to find that it occurred by the preponderance of the 

evidence, it should be admitted.” (emphasis added)). Because Mink failed to renew 

his objection when the government offered such evidence at trial, we review under 

the familiar plain error standard. See Big Eagle, 702 F.3d at 1130. 

Here, the government asserts that the uncharged conduct is intrinsic to the 

charges against Mink and is therefore not subject to Rule 404(b)’s bar to propensity 

evidence. We agree. Federal Rule of Evidence 404(b) generally prohibits the use 

of “[e]vidence of any other crime, wrong, or act . . . to prove a person’s character in 
-18- 

order to show that on a particular occasion the person acted in accordance with the 

character.” However, “Rule 404(b) applies only to extrinsic, not intrinsic, evidence. 

‘Evidence of other wrongful conduct is considered intrinsic when it is offered for 

the purpose of providing the context in which the charged crime occurred.’” United 

States v. Young, 753 F.3d 757, 770 (8th Cir. 2014) (citations omitted). “This

evidence is admissible because it ‘completes the story or provides a total picture of 

the charged crime.’” Big Eagle, 702 F.3d at 1131 (citation omitted). The evidence 

of Mink’s uncharged conduct provides context and significance to Mink’s otherwise 

disparate actions. For example, this evidence shows that Mink’s use of the red box 

truck to injure or intimidate L.L. and D.B. was not an isolated incident but rather 

part of Mink’s continual harassment of the couple. Further, the evidence related to 

Mink’s coworker’s stolen pistol explains how Mink initially obtained possession of 

the firearm. Mink concedes as much. Appellant’s Reply Br. 24 (“The glue that 

holds together the [g]overnment’s theory that all 15 counts are part of a common 

scheme are allegations of a whole host of uncharged criminal conduct . . . .”). 

Because this evidence “help[s] to fill the gaps in the jury’s understanding of the 

crime[s] charged,” it is intrinsic evidence unaffected by Rule 404(b). Young, 753 

F.3d at 770. Additionally, as to the claim that these “gap fillers” were substantially 

more prejudicial than probative in violation of Rule 403, we find that such error is 

not plainly obvious. Accordingly, the district court did not plainly err in admitting 

evidence of uncharged conduct.

VII. 

Next, Mink contends that the district court erred by not dismissing or even 

questioning the entire venire after a venireperson made prejudicial comments during 

voir dire, thus violating Mink’s Sixth Amendment right to a fair and impartial jury. 

During voir dire, one venireperson—a clerk at the prosecuting attorney’s office—

noted that the prosecutors “were probably three of the best attorneys” with which 

the venireperson had worked. The venireperson further stated that she had seen 

Mink’s defense attorney “on the other side of things in a not favorable light.” Mink’s 
-19- 

attorney moved to dismiss the entire jury pool; the district court summarily denied 

the request but struck the venireperson from the jury pool for cause.

We review “whether the district court conducted voir dire in a way that 

protected [a defendant’s] Sixth Amendment right to a fair and impartial jury” for an 

abuse of discretion. United States v. Pendleton, 832 F.3d 934, 943 (8th Cir. 2016) 

(alteration in original) (citation omitted). “This deferential standard of review 

reflects the fact that the district court is in the best position to judge whether the 

dismissed venireperson’s statements are so detrimental as to render the entire venire 

biased against a defendant.” Id. Without the benefit of “observ[ing] the demeanor 

and response of the prospective jurors,” it is practically impossible for this Court to 

grasp “the atmosphere of the [proceedings], the manner in which the words were 

spoken, or the probable effect, if any, which they had upon the merits of the 

controversy.” Id. (citations omitted). 

Mink relies solely on Mach v. Stewart, 137 F.3d 630 (9th Cir. 1997), where a 

venireperson, a social worker, talked extensively before the entire venire about how 

“she had never, in three years in her position, become aware of a case in which a 

child had lied about being sexually assaulted,” the crime with which the defendant 

was charged. Id. at 632. The Ninth Circuit found that given the nature of the 

venireperson’s “expert-like” statements, “the certainty with which they were 

delivered, the years of experience that led to them, and the number of times that they 

were repeated,” at least one juror had presumably been “tainted” by the statements

and had “entered into jury deliberations with the conviction that children simply 

never lie about being sexually abused,” creating a biased jury. Id. at 633. We 

rejected a similar comparison to Mach in United States v. Lussier, 423 F.3d 838 (8th 

Cir. 2005), where a venireperson made disparaging comments about the defendant’s 

witness before the entire venire. See id. at 840 (noting the venireperson’s statement 

that the defendant’s witness “had been a neighborhood nuisance”). There, we found 

that the remarks were distinct from Mach because they did not pertain to the 

defendant, much less bear upon his guilt of the crime charged. Id. at 842. We also 
-20- 

noted that the remarks were neither “expert-like nor highly inflammatory” as to 

cause the same type of prejudicial concerns. Id. 

Here, we find Mink’s case more analogous to the facts present in Lussier. The 

venireperson’s comments were not directed at Mink or his guilt but rather Mink’s 

counsel. See id.; cf. United States v. Baker, 855 F.2d 1353, 1360-61 (8th Cir. 1988) 

(finding that the district court did not abuse its discretion when it did not question 

jurors individually about possible prejudice arising out of a newspaper article

quoting a prosecutor stating that the defense counsel often misled the jury). Further, 

this vague, isolated comment does not mirror the extensive, expert-like, and highly

inflammatory statements at issue in Mach. See Lussier, 423 F.3d at 842. Given the 

nature of the venireperson’s comments, which had no bearing on Mink’s guilt, we 

find that the district court was under no obligation to further question the venire 

about the potential impact of the statements. Cf. United States v. Medrano, 925 F.3d 

993, 997 (8th Cir. 2019) (“In general, the district court has substantial discretion in 

conducting voir dire.”). Further, we find that the district court did not abuse its 

discretion in refusing to dismiss the entire venire. See Pendleton, 832 F.3d at 945 

(“Requiring the court inflexibly to start over again with a new venire panel every 

time—regardless of the nature, credibility, brevity, or volume of the statement—is a 

‘burden [that] cannot be placed upon the criminal processes and the selection of a 

jury.’” (alteration in original) (citation omitted)).

VIII. 

Next, Mink contends that the evidence was insufficient to support the jury’s 

verdict on Counts 6, 14, and 15. Specifically, Mink argues that there was insufficient 

evidence to prove (1) that Mink fraudulently used a means of identification, an 

element of Count 6; and (2) that there was an “official proceeding” underway on the 

dates alleged in the offense, an element of Counts 14 and 15. “We review the 

sufficiency of the evidence in the light most favorable to the verdict and overturn 

[the conviction] only if no reasonable jury could find that the elements of the offense 

have been proven beyond a reasonable doubt.” United States v. Petruk, 781 F.3d 
-21- 

438, 441 (8th Cir. 2015) (alteration in original) (citation omitted). If the argument 

turns upon statutory interpretation, “we review the district court’s statutory 

interpretation de novo.” Id. (citation omitted).

A.

Mink argues that there was no evidence that he used a “means of 

identification” because the debit card did not contain information sufficient to 

identify a specific individual. 18 U.S.C. § 1028(a)(7) (Count 6) requires that the 

government prove that the defendant used “a means of identification of another 

person” in connection with a crime. “The phrase ‘means of identification’ is defined 

as ‘any name or number that may be used, alone or in conjunction with any other 

information, to identify a specific individual.’” United States v. Foster, 740 F.3d 

1202, 1207 (8th Cir. 2014) (citation omitted). Such information “include[es], but 

[is] not limited to, a social security number, date of birth, driver’s license number, 

or taxpayer identification number.” Id. The information must collectively be 

“sufficient to identify a specific person.” Id. at 1207-08. Here, the government’s 

evidence showed that while Mink used his own address, phone number, and email 

address, Mink used the name, social security number, and date of birth of another, 

identifiable individual, T.S, to obtain the debit card. Accordingly, we find that there 

was sufficient evidence for a reasonable jury to conclude that Mink used a “means 

of identification of another person.”

Additionally, Mink argues that he did not “use” the means of identification 

within the meaning of the statute. Relying on United States v. Gatwas, 910 F.3d 362 

(8th Cir. 2018), Mink contends that his use of the individual’s information was 

merely incidental to the debit card transactions because the debit card did not identify 

T.S. and the funds were drawn from Mink’s own bank account. See id. at 368 

(noting that 18 U.S.C. § 1028A requires that “the use of another person’s means of 

identification . . . be more than incidental to the fraud”). Mink’s argument is 

misplaced. In Gatwas, this Court interpreted 18 U.S.C. § 1028A (aggravated identity

theft) which contains language different from Mink’s crime of conviction, 
-22- 

§ 1028(a)(7). See id. at 366-67. Section 1028(a)(7) prohibits an individual from 

using a means of identification of another person “with the intent to commit, or aid 

or abet, or in connection with, any unlawful activity” that constitutes a felony. By 

contrast, § 1028A prohibits the use of such information when used “during and in 

relation to” the commission of prescribed felonies. We acknowledged in Gatwas

that the language in § 1028(a)(7) is likely broader than that found in § 1028A. Id.

(“This suggests that Congress employed the phrase ‘during and in relation to’ in 

§ 1028A(a)(1) to limit the statute’s breadth to a greater degree than the expanded 

phrase ‘in connection with’ that was added to § 1028(a)(7).”). Here, the evidence 

showed that Mink used the information to apply for the debit card that was used to 

purchase firearm accessories and services from PeopleFinders. Accordingly, we 

find that there was sufficient evidence for a reasonable jury to convict Mink on 

Count 6.

B. 

Mink also challenges the sufficiency of the evidence to support his conviction 

on Counts 14 and 15, the witness tampering and obstruction of justice charges, 

respectively. Specifically, he argues that the government did not prove that there 

was an “official proceeding” underway at the time he instructed Stevens to destroy 

evidence and sign the false affidavit. 18 U.S.C. § 1512(b)(2)(B) (Count 14) states: 

Whoever knowingly uses intimidation, threatens, or corruptly 

persuades another person, or attempts to do so, or engages in misleading 

conduct toward another person with intent to . . . cause or induce any 

person to . . . alter, destroy, mutilate, or conceal an object with intent to 

impair the object’s integrity or availability for use in an official 

proceeding . . . shall be fined under this title or imprisoned not more 

than 20 years, or both.

Section 1512(c)(2) (Count 15) similarly states: “Whoever corruptly . . . obstructs, 

influences, or impedes any official proceeding, or attempts to do so, shall be fined 

under this title or imprisoned not more than 20 years or both.”
-23- 

“An ‘official proceeding’ includes a proceeding before a federal judge, court, 

or grand jury, but not a state proceeding.” Petruk, 781 F.3d at 444. Importantly, 

“the government need not prove that the defendant was aware that the proceeding 

was federal in nature,” nor does “[t]he official proceeding ‘need [to] be pending or 

about to be instituted at the time of the offense.’” Id. (citation omitted). The 

government must prove merely “that the defendant contemplated a particular, 

foreseeable proceeding, and that the contemplated proceeding constituted an 

‘official proceeding.’” Id. at 445. Here, Mink’s actions—i.e., instructing Stevens 

to destroy a detonator after law enforcement had searched the house and to sign a 

false affidavit—by their very nature evince that Mink contemplated criminal liability 

in a future proceeding. Moreover, when instructing Stevens on the phone to destroy 

the detonator, Mink expressly acknowledged that the government was building a 

case against him. And in his letter requesting that Stevens sign the false affidavit, 

Mink explained how the affidavit would detrimentally affect the government’s case 

against him. Viewing the evidence in the light most favorable to the jury’s verdict, 

we find that there was sufficient evidence for a reasonable jury to find that Mink 

contemplated a particular, foreseeable proceeding. Accordingly, we find that the 

evidence was sufficient for a reasonable jury to convict Mink on Counts 14 and 15.

IX. 

Next, Mink contends that there were myriad errors in the jury instructions. 

Specifically, he argues (1) that a mens rea element was omitted from multiple 

instructions; (2) that the instructions for Count 2 presupposed a factual finding; and 

(3) that the instructions for Count 3 allowed the same weapon to serve as both the 

“deadly weapon” for the underlying crime and the “dangerous weapon” for the 

enhancement. “A challenge to a jury instruction is reviewed for an abuse of 

discretion.” United States v. Stanley, 891 F.3d 735, 739 (8th Cir. 2018). However, 

because Mink failed to object to these instructions at trial, “this [C]ourt reviews only 

for plain error.” Id. 
-24- 

“The district court has wide discretion in formulating appropriate jury 

instructions,” and rarely will “an improper instruction . . . justify reversal of a 

criminal conviction when no objection has been made in the trial court.” Stanley, 

891 F.3d at 739 (citations omitted). We “will not find error when the jury instruction 

‘fairly and adequately submitted the issue[] to the jury’” and will only reverse when 

“the ailing instruction by itself so infected the entire trial that the resulting conviction 

violates due process.” Id. (alteration in original) (citations omitted). Accordingly, 

a defendant must show that but for the erroneous jury instruction, “there is a 

‘reasonable probability’ that he would have been acquitted.” Greer v. United States, 

141 S. Ct. 2090, 2097 (2021) (citation omitted). 

A.

Mink contends that the district court omitted a mens rea term, specifically 

“knowingly,” from multiple jury instructions.3

 First, he argues that to be convicted 

of violating 18 U.S.C. § 842(i) (Counts 5 and 13), the jury was required to find that 

he “knowingly” received or possessed the explosive device. We have stated that a

defendant must knowingly receive or possess the explosive device under § 842(i). 

See United States v. Joos, 638 F.3d 581, 588 (8th Cir. 2011). Here, the jury was 

instructed on Counts 5 and 13 to find merely that “[Mink] received or possessed an 

explosive.” R. Doc. 207, at 13. However, “possession” was defined in a separate 

instruction as “knowingly ha[ving] direct physical control” or “both the power and 

the intention . . . to exercise dominion” over a thing. R. Doc. 207, at 19 (emphasis 

added). We find that, when taken as a whole, the instructions sufficiently articulated 

the “knowing” element such that the matter was fairly and adequately submitted to 

3 Mink suggests that the failure to include a proper mens rea element in a jury 

instruction is an “uncurable structural error,” resulting in per se unconstitutional 

prejudice. Appellant Br. 57. However, “the omission of a single element from jury 

instructions” is not a structural error but rather a “discrete defect[] in the criminal 

process” that does not “necessarily render a criminal trial fundamentally unfair or 

an unreliable vehicle for determining guilt or innocence.” Neder v. United States, 

527 U.S. 1, 9 (1999); Greer, 141 S. Ct. at 2100. Therefore, the omission of a mens 

rea element from the jury instructions is not structural error. 
-25- 

the jury. See United States v. Henderson, 482 F.2d 558, 559-60 (8th Cir. 1973) (per 

curiam) (finding no error in similar jury instructions when the “knowing” 

requirement was contained in the given definition of “possession”). Accordingly, 

there was no error.

Next, Mink argues that to be convicted of violating 18 U.S.C. § 1028(a)(7) 

(Count 6) and 18 U.S.C. § 842(i) (Counts 5 and 13), the jury was required to find 

that he knew of his status as a felon. In Rehaif v. United States, 139 S. Ct. 2191 

(2019), the Supreme Court held that to convict an individual under 18 U.S.C. 

§§ 922(g) and 924(a)(2), the government must establish that the defendant knew of 

his felon status. Id. at 2195-97. The government concedes, and we agree, that the 

omission of this element was an error that was plain. However, even under Rehaif, 

a defendant must show that the error affected his substantial rights to prevail under 

the plain error standard. See United States v. Hollingshed, 940 F.3d 410, 415 (8th 

Cir. 2019). Accordingly, Mink must “show a reasonable probability that, but for the 

error, the outcome of the proceeding would have been different.” Id. at 416 (citation 

omitted).4 Here, Mink makes no such argument on appeal,5 but only, as discussed 

above, that the omission of this element resulted in structural error. Accordingly, he 

4

The Supreme Court recently affirmed this standard in Greer: “In felon-inpossession cases, a Rehaif error is not a basis for plain-error relief unless the 

defendant first makes a sufficient argument or representation on appeal that he would 

have presented evidence at trial that he did not in fact know he was a felon.” Greer, 

141 S. Ct. at 2100. 

 5

Moreover, all that is required under Rehaif is that the government prove “that 

[the defendant] knew he belonged to the relevant category of persons barred from 

possessing a firearm.” United States v. Sholley-Gonzales, 996 F.3d 887, 895 (8th 

Cir. 2021) (alteration in original) (quoting Rehaif, 139 S. Ct. at 2200). Here, Mink 

stipulated to his felon status at trial, R. Doc. 221, at 53, testified that he had 

committed felonies as far back as 2004, R. Doc. 297, at 36-37, and even alluded to 

the fact that he knew he could not possess firearms because he was a felon, see R. 

Doc. 297, at 125. Notwithstanding our foregoing analysis, we find that this evidence 

eliminates any reasonable probability that the outcome of the proceeding would have 

been different but for the erroneous instruction.
-26- 

has failed to show “there is a ‘reasonable probability’ that he would have been 

acquitted.” Id. at 2097. 

Next, Mink argues that to be convicted of violating 26 U.S.C. § 5861(d)

(Counts 4 and 12), the jury must have found that Mink had “known” that the device 

was a “firearm” within the meaning of the statute and that he had a duty to register 

the device. Mink’s first contention is without merit. Section 5845 includes “a 

destructive device” in the definition of “firearm.” Id. § 5845(a)(8). Here, the jury 

was instructed to determine whether “the defendant knew that the device was a 

destructive device.” Moreover, the jury was instructed that “[t]he defendant must 

have known the characteristics of the device that made it a ‘destructive device” and 

was subsequently given a definition of “destructive device” consistent with

§ 5845(f). Because the jury was instructed to find whether Mink knew that the 

device was a destructive device based on its characteristics, we find no error in the 

instruction. Mink’s second argument likewise fails as a matter of law. The 

government must prove merely “that the defendant knew of the physical 

characteristics of the weapon bringing the weapon within the ambit of the 

[regulation],” United States v. White, 863 F.3d 784, 790 (8th Cir. 2017), which was 

included in the jury instructions. The Supreme Court has repeatedly found that a 

defendant need not know that he had a duty to register explosive devices under 

§ 5861 or that the devices were not registered. See United States v. Freed, 401 U.S. 

601, 607-10 (1971) (“This is a regulatory measure in the interest of public safety, 

which may well be premised on the theory that one would hardly be surprised to 

learn that possession of hand grenades is not an innocent act”); see also Staples v. 

United States, 511 U.S. 600, 610-11 (1994) (reaffirming Freed); Rehaif, 139 S. Ct. 

at 2197 (citing Staples for the proposition that a mens rea is not presumed in an 

otherwise silent regulatory or public welfare provision). Accordingly, we find no 

error in the jury instruction. 

In conclusion, we find that there were no plain errors in the jury instructions 

that affected Mink’s substantial rights.
-27- 

B. 

Next, Mink contends that the district court erred by giving an instruction on 

Count 2 that presupposed that the vehicle (the red box truck) was a “dangerous 

weapon,” a finding necessary for an enhanced sentence under 18 U.S.C. 

§ 2261(b)(3). The instruction for enhancement as to Count 2 stated: “[I]f you find 

the defendant guilty of the crime charged in that count, you will be asked in the 

verdict form to unanimously determine beyond a reasonable doubt whether the 

defendant used a dangerous weapon (a motor vehicle) during the commission of the 

offense.” R. Doc. 207, at 8. Even if we were to agree that this instruction improperly 

removed the decision from the province of the jury, Mink cannot show that but for 

the erroneous instruction he would not have received the enhancement. Cf. Greer, 

141 S. Ct. at 2097. Counts 3 and 10 included similar language as found in Count 2 

but also an instruction defining a “dangerous weapon” as “an object used in a manner 

likely to endanger life or inflict serious bodily harm.” R. Doc. 207, at 22. This 

instruction clarifies that the “(a motor vehicle)” language was added for the purpose 

of clarifying what weapon was at issue. Mink does not challenge this instruction, 

and the jury found the vehicle was a dangerous weapon on Counts 3 and 10. Because 

the jury found that the red box truck was a “dangerous weapon” as to Counts 3 and 

10, he cannot show a reasonable probability that the outcome of the proceeding as 

to Count 2 would have been different but for the erroneous instruction. See

Hollingshed, 940 F.3d at 416. Therefore, we find that Mink has not established an 

error as to his conviction on Count 2 that affected his substantial rights.

C. 

Next, Mink argues that the instructions for Count 3 were erroneous.6

 To 

convict an individual under 18 U.S.C. § 2261(a)(1), the government had to prove 

that Mink (1) traveled in interstate commerce; (2) with the intent to kill, injure, 

6

Necessarily, if the instructions as to Count 3 were erroneous, the instructions 

as to Count 10 would be as well. However, Mink only challenges the instructions 

as they pertain to Count 3.
-28- 

harass, or intimidate L.L.; and (3) in doing so, committed or attempted to commit a 

crime of violence against L.L. To establish that Mink committed or attempted to 

commit a crime of violence, the government had to prove that Mink committed 

aggravated battery under Illinois law, which requires a finding that the defendant 

used a “deadly weapon.” R. Doc. 207, at 9. In order to establish the enhanced 

sentence under § 2261(b)(3), the government had to prove that Mink used a 

“dangerous weapon.” Mink contends that the instructions impermissibly allowed 

the “motor vehicle” to serve as both the “deadly weapon” necessary for the 

underlying crime and the “dangerous weapon” necessary for the enhancement. In 

support of his proposition, Mink relies on Cunningham v. California, 549 U.S. 270 

(2007), quoting, “A fact underlying an enhancement cannot do double duty; it cannot 

be used to impose an upper term sentence and, on top of that, an enhanced term.” 

Id. at 280-81 (citing Cal. Penal Code § 1170(b)). However, Mink misconstrues this 

statement. The Supreme Court in Cunningham was merely reciting a requirement 

found in California’s sentencing statute, not stating a separate legal rule. See id. 

 

Mink further relies on a line of Seventh Circuit cases, but those cases are 

inapposite here as they concern sentencing enhancements specific to the United 

States Sentencing Guidelines, not mandatory minimum sentence enhancements 

under the United States Code. See, e.g., United States v. Tenuto, 593 F.3d 695, 697 

(7th Cir. 2010) (discussing a sentencing court’s inability to use conduct accounted 

for in a defendant’s base offense level to additionally enhance the defendant’s 

guideline range). Additionally, Mink argues that § 2261, as a matter of statutory 

construction, requires the proof of two different weapons because the statute does 

not indicate that the “deadly weapon” and the “dangerous weapon” can be the same. 

However, Mink raises this argument for the first time in his reply brief, and it is 

accordingly waived. See United States v. Morris, 723 F.3d 934, 942 (8th Cir. 2013). 

Therefore, Mink has failed to show that there was an error in the jury instructions as 

to Count 3, much less one that was plain. 
-29- 

X.

Lastly, Mink contends that his conviction on Count 8 must be vacated because 

the predicate crime of violence alleged in the count is impermissibly broader than 

the definition of “crime of violence” in 18 U.S.C. § 924(c) (Count 8). Specifically, 

Mink argues that the commission of arson in violation of 18 U.S.C. § 844(i), the 

predicate crime of violence, is impermissibly broad because an individual may be 

convicted under that section for committing arson against his or her own property 

whereas possession of a firearm in furtherance of a crime of violence in violation of

§ 924(c) requires the government to prove that the defendant committed the 

predicate crime against the property or person of another. The government concedes 

that Mink’s argument is a correct statement of the law and that violation of § 844(i)

does not qualify as a crime of violence as defined by § 924(c). Accordingly, Mink’s 

conviction with respect to Count 8 must be vacated.

In response, the government requests that Mink’s sentence be vacated on all 

counts under the “sentencing package doctrine” so the district court can guarantee 

that the overall sentencing plan remains adequate. “Under the sentencing package 

doctrine, we ‘may vacate the entire sentence on all counts so that, on remand, the 

trial court can reconfigure the sentencing plan to ensure that it remains adequate to 

satisfy the sentencing factors in 18 U.S.C. § 3553(a).’” United States v. McArthur, 

850 F.3d 925, 943 (8th Cir. 2007) (citation omitted). We apply the doctrine when 

there is a “multicount indictment[] and a successful attack by a defendant on some 

but not all of the counts of conviction.” Id. (citation omitted). We have found such 

discretionary vacatur appropriate when the vacatur of the sentence as to one or more 

counts results in a significantly lower sentence than what the district court originally 

contemplated. See id. (finding that the sentencing package doctrine was appropriate 

when the vacatur of one conviction reduced defendant’s sentence from 516 months 

to 216 months imprisonment). Here, Mink’s sentence would be reduced from 600 

months to 240 months imprisonment if the doctrine were not applied. Accordingly, 

we find that it is appropriate to apply the doctrine and vacate Mink’s sentence as to 

all counts to allow “the trial court [to] reconfigure the sentencing plan to ensure that 
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[Mink’s sentence] remains adequate to satisfy the sentencing factors in [§ 3553(a)].” 

Id. 

XI. 

For the foregoing reasons, we vacate Mink’s conviction on Count 8, affirm 

his convictions on the remaining counts, vacate Mink’s entire sentence, and remand 

for resentencing.7

______________________________

7

Mink has filed a “Motion to Appeal Order to Deny Access to the Courts By 

Not Granting Court Filings to Defendant” pro se. Because Mink is represented by 

counsel, we decline to consider his pro se motion. See United States v. Carr, 895 

F.3d 1083, 1090 (8th Cir. 2018) (“It is Eighth Circuit policy not to address issues 

raised by a defendant in pro se filings with this Court when he is represented by 

counsel.” (citation omitted)).