United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 20-3559

___________________________ 

United States of America

 Plaintiff - Appellee

v.

Marcin Stanislaw Garbacz

 Defendant - Appellant

____________

Appeal from United States District Court 

for the District of South Dakota - Western

____________ 

Submitted: December 16, 2021

Filed: April 27, 2022

____________ 

Before SMITH, Chief Judge, GRUENDER and KOBES, Circuit Judges. 

____________

GRUENDER, Circuit Judge.

When he worked as a priest, Marcin Garbacz stole from the cash-offering 

collections of several parishes. After a jury trial, he was convicted of wire fraud, 

money laundering, transporting stolen money, and making and subscribing false tax 

returns. The district court sentenced him to 93 months’ imprisonment. Garbacz 

appeals his convictions, his sentence, and the district court’s forfeiture order and 

restitution award. We reverse three of Garbacz’s convictions and affirm his
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remaining convictions, the forfeiture order, and the restitution award. We affirm his 

sentence, except that we direct the district court to vacate the $100 special 

assessments associated with Counts 39, 41, and 44.

I.

Garbacz worked as a Catholic priest serving the Diocese of Rapid City, South 

Dakota as a school chaplain. Between 2012 and 2018, he resided at three parishes 

in Rapid City. During that time, Garbacz would enter the parishes during the night 

and steal cash that had been collected during Mass. As suspicions rose, the 

bookkeeper at St. Therese the Little Flower Catholic Church started using tamperproof bags in early March 2018 and immediately noticed that the bags’ serial 

numbers changed without explanation after Sunday Masses, indicating that they had 

been replaced by someone. The bookkeeper and pastor installed security cameras, 

and on April 23, Garbacz was caught on video entering the parish between 1:00 a.m. 

and 1:30 a.m. and stealing cash. Garbacz brought tamper-proof bags with him, 

pocketed some of the offerings, and sealed the rest into the new tamper-proof bags 

so that it appeared as if nothing had been changed. Garbacz then would write 

information on the new bags to match the handwriting that appeared on the originals. 

The day Garbacz was caught on video, the bishop of the diocese confronted

him and suspended him after he admitted to stealing cash. On the same day, Garbacz 

withdrew $40,000 from his South Dakota credit-union account. In June, local police

interviewed Garbacz, and he admitted to stealing from St. Therese and other parishes 

over two years, described his method for replacing the tamper-proof bags, and 

explained that he would deposit the stolen cash into his credit-union account. After 

he withdrew funds from his account, Garbacz opened an account with U.S. Bank in 

St. Louis, Missouri, and made a series of cash deposits totaling approximately 

$39,000 between July and October of 2018.

On May 6, 2019, IRS Special Agent Brian Pickens contacted Garbacz. 

Garbacz claimed that he had stolen only $600, but Special Agent Pickens told him 
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that he was investigating a theft of more than $200,000. At that time, Garbacz lived 

in Kent, Washington and had an account there with J.P. Morgan Chase Bank. By 

May 10, Garbacz had withdrawn $50,500 from that account, leaving it with a balance 

of less than $300. Special Agent Pickens testified that the amount withdrawn was 

“primarily comprised of the $39,000 in cash he had deposited into his U.S. Bank 

account,” which itself came from “the [$]40,000 he had withdrawn from his [credit 

union] account on April 23rd of 2018.” Garbacz’s internet search history around 

that time showed inquiries about moving to Poland, withdrawing cash “without 

triggering the IRS,” and storing money in offshore accounts.

After speaking to Special Agent Pickens, Garbacz shipped eighteen boxes 

containing valuable statues to Josh VanBuskirk in Wyoming. Garbacz also bought 

a plane ticket for VanBuskirk to fly to Washington and instructed him to retrieve 

valuable items from a storage unit there. Garbacz told VanBuskirk to sell the 

valuables and wire half of the proceeds to him. The IRS eventually seized the items.

Garbacz booked a flight to Poland and sent a text message to VanBuskirk, 

saying that Garbacz would “start telling people [he] moved to England” and that he

“d[id]n’t want the feds to find out.” Garbacz was arrested on May 10, 2019, at the 

airport. He had $10,500 in cash on his person and valuable items, including ornate 

chalices, in his luggage.

Garbacz was charged with forty-seven counts of wire fraud regarding cash 

deposits into his credit-union account and three counts of wire fraud regarding wire 

transfers from the credit-union account to pay balances on his credit card. He was 

also charged with nine counts of money laundering regarding cash withdrawals 

made over three days from his savings and checking accounts after learning he was 

under federal investigation and before his planned flight to Poland. Another count 

alleged that Garbacz transported stolen money in interstate commerce when he 

withdrew $40,000 from the South Dakota credit-union account and deposited 

$39,000 in his Missouri bank account. Five counts alleged that he willfully made 
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and subscribed false tax returns from 2013 to 2017 by omitting money he had 

embezzled.

Garbacz pleaded not guilty, and the case proceeded to trial. At trial, Special 

Agent Pickens testified that Garbacz’s after-tax earnings from 2012 to 2018 were

approximately $93,000, yet he had paid $398,837.09 from his credit-union account 

to his credit card to cover purchases made during that time. Garbacz’s annual pretax salary as a priest ranged from approximately $20,000 to $24,000. His salary was 

paid through electronic fund transfers and checks, but his “single greatest source of 

income” came from cash deposits into his credit-union account. 

Testimony indicated that Garbacz engaged in “a consistent pattern of cash 

deposits” on a near-weekly basis until he was caught on video, after which the 

deposits stopped. He often made the deposits late at night, and “cash deposits tended 

to occur shortly after weekend masses.” Special Agent Pickens testified that “[t]he 

denominations of cash” Garbacz deposited—including large amounts of five-dollar 

and ten-dollar bills—were “consistent with . . . the collections at parishes in Rapid 

City.” 

Garbacz’s colleagues testified that when asked about his expensive statues, 

Garbacz told them that his family in Poland regularly sent him cash. However, there 

was no evidence of wire transfers or incoming checks from Poland, and Garbacz’s 

acquaintances who visited his family in Poland observed that they did not appear 

wealthy. Some of Garbacz’s valuables were engraved with dates or names 

indicating that they were gifts, but there was evidence that Garbacz fabricated those 

engravings. For example, one chalice bore the name of Garbacz’s colleague, Seth 

Thomas Smith, yet Smith testified that he had no knowledge of the item and had 

nothing to do with it. Evidence at trial showed that Garbacz had transferred money 

from his credit-union account to pay art dealers and manufacturers for expensive 

religious items, such as chalices. Special Agent Pickens testified that Garbacz could

not have afforded these items on his legitimate salary.
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The jury convicted Garbacz on all counts. The district court then held a 

forfeiture hearing, where Garbacz objected to the forfeiture of two statues because 

he claims he purchased them with legitimate funds. To show that Garbacz could not 

have afforded the items with legitimate funds, the Government introduced evidence 

of Garbacz’s legitimate disposable income for each year at issue, calculated by 

subtracting tax and recurring payments from Garbacz’s total reported income.

One of the objected-to forfeitures concerned the “Chroma” statue, which had 

a purchase price of $14,000 at the time Garbacz bought it in February 2018. His 

legitimate disposable income in the first half of that year was about $6,855.44, and 

it was $11,727.88 the previous year. The Chroma statue purchase coincided with 

transfers of funds from Garbacz’s credit-union account to his credit card. Separate 

from the Chroma statue purchase, Garbacz had purchased more than $34,000 worth 

of religious items during the first two months of 2018.

Garbacz also objected to the forfeiture of the “Nureyev” statue, which he 

bought with his credit card for $12,500 in 2016. That purchase coincided with a 

payment from his credit-union account to the credit card. In 2016, Garbacz’s 

legitimate disposable income was $5,671.84. He transferred at least $41,135 from 

his credit-union account to his credit card in that year. Special Agent Pickens

testified that Garbacz could not have afforded either statue with legitimate income. 

The district court ordered forfeiture of the statues and other property.

Then the court held a restitution hearing. Special Agent Pickens testified that 

the cash deposits to the credit-union account involved stolen cash. The pastors of 

the three parishes requested that any restitution ordered be split evenly among the 

three parishes. The Government sought $259,696.19 in restitution to be divided 

among the parishes and $46,008 to go to the IRS, representing unpaid taxes. The 

district court ordered $46,008 in restitution to the IRS and $258,696.19 in restitution 

to the parishes, accounting for a possible $1,000 that Garbacz may have received in 

stipends for performing priestly services.
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At sentencing, Garbacz objected to a two-level “sophisticated means” 

enhancement under U.S.S.G. § 2B1.1(b)(10). The district court concluded that the 

enhancement applied, reasoning that Garbacz’s acquisition of the tamper-proof bags, 

altering their labels, and replacing cash in them over many years showed

sophistication. Garbacz was sentenced to 57 months’ imprisonment for each of 

Counts 1 through 60, to run concurrently, and 36 months’ imprisonment for each of 

Counts 61 to 65 (the tax counts), also to run concurrently. The two sets of counts 

were to run consecutively, resulting in a total of 93 months’ imprisonment. The 

district court imposed a $100 special assessment for each count. Garbacz appeals, 

challenging the sufficiency of the evidence supporting his wire fraud convictions 

(Counts 1 to 50), his conviction for transporting stolen money (Count 60), his money 

laundering convictions (Counts 51 to 59), and his tax convictions (Counts 61 to 65). 

He also appeals the forfeiture order, the restitution award, and the application of the 

sophisticated-means enhancement to his sentence.

II.

We review de novo challenges to the sufficiency of the evidence, viewing “the 

evidence in the light most favorable to the guilty verdict” and “granting all 

reasonable inferences that are supported by that evidence.” United States v. 

Johnson, 745 F.3d 866, 869 (8th Cir. 2014). “We will reverse the conviction only 

if . . . we conclude that no reasonable trier of fact could find guilt beyond a 

reasonable doubt.” United States v. Proffit, 49 F.3d 404, 406 (8th Cir. 1995). 

Sufficiency-of-the-evidence arguments raised for the first time on appeal, however, 

are reviewed for plain error. United States v. Ruzicka, 988 F.3d 997, 1008 (8th Cir. 

2021). 

A.

Garbacz claims that the evidence was insufficient to support his wire fraud 

convictions under 18 U.S.C. § 1343. “Under § 1343, the government must prove (1) 

intent to defraud, (2) participation in a scheme to defraud, and (3) the use of a wire 
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in furtherance of the fraudulent scheme.” United States v. Burns, 990 F.3d 622, 627 

(8th Cir. 2021) (internal quotation marks omitted). Because “each use of a wire is a 

separate violation of the wire fraud statute, there may be multiple violations arising 

from a single fraudulent scheme.” United States v. Rice, 699 F.3d 1043, 1047 (8th 

Cir. 2012) (citations omitted).

Garbacz advances two arguments: (1) there was insufficient evidence that his 

credit-union deposits and transfers furthered a fraudulent scheme, and (2) there was 

insufficient evidence that they involved stolen cash. 

1. 

 

We first address the argument that Garbacz’s credit-union deposits did not 

further a fraudulent scheme because, he asserts, the scheme was complete once the 

cash was taken. Although Garbacz challenged the sufficiency of the evidence in his 

acquittal motion, he did not make this particular argument before the district court. 

Accordingly, we review for plain error. See Ruzicka, 988 F.3d at 1007-08 (reviewing 

for plain error where the appellant “forfeited [the] argument by failing to make it in 

a motion for acquittal or a motion for a new trial”); United States v. Chastain, 979 

F.3d 586, 592 (8th Cir. 2020). 

To show plain error, Garbacz “must establish that (1) the district court 

committed an error, (2) the error is clear and obvious, and (3) the error affects his 

substantial rights.” See Chastain, 979 F.3d at 592. “If those three conditions are 

met, the district court has discretion to correct the error if it seriously affected the 

fairness, integrity, or public reputation of judicial proceedings.” United States v. 

Camp, 410 F.3d 1042, 1047 (8th Cir. 2005). 

The use of a wire furthers a fraudulent scheme if it is “a part of the execution 

of the fraud” that is at least “incident to an essential part of the scheme.” United 

States v. McKanry, 628 F.3d 1010, 1017 (8th Cir. 2011). If the use of the wire occurs 

“after [the] scheme reaches fruition,” it is generally not in furtherance of the 
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fraudulent scheme. See United States v. Taylor, 789 F.2d 618, 620 (8th Cir. 1986)

(stating the standard for mail fraud); United States v. Cole, 721 F.3d 1016, 1021 (8th 

Cir. 2013) (“The elements of wire fraud under 18 U.S.C. § 1343 are identical to the 

elements of mail fraud except that wire fraud involves interstate wire 

communications rather than mail.”). 

Ordinarily, a criminal’s use of misappropriated cash, whether he spends it or 

places it into his bank account, is not part of the scheme used to obtain it. See United 

States v. Redcorn, 528 F.3d 727, 739 (10th Cir. 2008) (“[A]t some point the 

fraudulent scheme must be complete, and the perpetrators’ subsequent enjoyment of 

its fruits—buying groceries, going to the movies, redecorating the bathroom—is not 

an ‘essential’ part of the scheme.” (quoting Taylor, 789 F.2d at 620)). But uses of 

wires “which are designed to lull victims into a false sense of security, postpone 

inquiries or complaints, or make the transaction less suspect” further the fraudulent 

scheme. See United States v. Tackett, 646 F.2d 1240, 1243 (8th Cir. 1981). In cases 

of repeated or continuous fraud, this includes uses of wires that are “essential . . . to 

keep [the] ongoing scheme from coming under scrutiny.” See United States v. 

Fiorito, 640 F.3d 338, 348 (8th Cir. 2011). 

The district court did not plainly err in failing sua sponte to disturb the jury’s 

finding that Garbacz’s cash deposits furthered his fraudulent scheme. Garbacz lived 

communally with other priests who knew about his modest salary and might well 

have suspected wrongdoing if they discovered significant amounts of cash on the 

premises in denominations characteristic of church offerings. Assuming the

deposited money comprised stolen cash, a reasonable jury could believe that the cash 

deposits, often occurring in the dead of night, were designed to “postpone inquiries,” 

see Tackett, 646 F.2d at 1243, and “to keep [the] ongoing scheme from coming under 

scrutiny,” see Fiorito, 640 F.3d at 348.

Garbacz relies on United States v. Jolivet, where we reversed money 

laundering convictions based on deposits of cash obtained through insurance fraud. 

224 F.3d 902, 909-11 (8th Cir. 2000). In Jolivet, we rejected the view that actions 
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“mak[ing] the proceeds available for use” thereby “further[] the illegal activity.” Id. 

at 909. Mere deposits of fraudulently obtained cash, we held, could not “promote 

the carrying on of an already completed crime.” Id. We recognized in Jolivet, 

however, that “[i]f the government had produced evidence that Jolivet used the . . . 

monies to continue her schemes, her convictions would stand.” Id. as 911. Even 

assuming that the money-laundering element at issue in Jolivet—“intent to promote 

the carrying on” of unlawful activity, 18 U.S.C. § 1956(a)(1)(A)(i)—is equivalent 

to the “furtherance” element of a wire fraud conviction, see Burns, 990 F.3d at 627, 

the record permits a finding that the deposits were used to hide stolen cash from 

those who would discover it. Garbacz was thus doing more than simply “ma[king] 

the proceeds available for use.” See Jolivet, 224 F.3d at 909. 

The district court did plainly err, however, in upholding the wire fraud 

convictions on Counts 39, 41, and 44, which involved transfers of funds rather than 

cash deposits. Each of these counts relates to an occasion when, usually within a 

couple days after depositing cash in his credit-union account, Garbacz transferred a 

similar amount of money from that account to his credit card. No reasonable jury 

could find that these actions furthered a fraudulent scheme. Once the cash was 

securely in the credit-union account, the danger that it would expose Garbacz’s 

scheme to fellow priests was eliminated. Unlike the cash deposits, Garbacz used the

transfers to pay off debt, not to keep suspicions at bay. On this record, no reasonable 

juror could conclude that the transfers “assist[ed] in carrying out the fraud.” See

McKanry, 628 F.3d at 1017. 

The credit card transfers were not “essential to the perpetuation of Garbacz’s 

scheme,” as the Government argues. Although Garbacz used his credit card to 

purchase expensive items that he then passed off as gifts from others, those

purchases themselves were not part of the fraud. Indeed, as Garbacz points out, the

unnecessary purchases undermined his fraudulent scheme, as the appearance of 

extravagant spending caused other priests to ask Garbacz how he acquired the items. 

See United States v. Nguyen, 829 F.3d 907, 921 (8th Cir. 2016) (noting that mailings 

are not in furtherance of a fraudulent scheme if their purpose “conflicts with, rather 
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than promotes, the scheme”). If the purchases were not in furtherance of the scheme, 

then neither were the transfers that paid the balance for those purchases. See

McKanry, 628 F.3d at 1017. 

The connection between the transfers and the fraudulent scheme is so 

attenuated that the district court’s error is “clear and obvious.” See Chastain, 979 

F.3d at 592. The error made the difference in convicting Garbacz on three counts, 

so it affected Garbacz’s substantial rights, see id.; Puckett v. United States, 556 U.S. 

129, 135 (2009) (noting that an error affected substantial rights if it “affected the 

outcome of the district court proceedings”), and “seriously affect[ed] the fairness, 

integrity or public reputation of judicial proceedings,” see Rosales-Mireles v. United 

States, 585 U.S. ---, 138 S. Ct. 1897, 1909 n.4 (2018). Accordingly, we reverse the 

convictions on Counts 39, 41, and 44. 

2. 

Garbacz argues there was insufficient evidence that the cash he deposited had 

been stolen. He cites evidence that priests were sometimes tipped for performing 

services like baptisms and that he was caught stealing cash only in 2018, not the 

prior years. Because he raised this argument before the district court, we review it 

de novo. See Ruzicka, 988 F.3d at 1007. 

Garbacz cannot overcome the “heavy burden” in overturning his conviction 

based on the sufficiency of the evidence. Proffit, 49 F.3d at 406. Garbacz was 

caught on camera stealing from a parish, and he admitted to stealing from multiple 

parishes. Throughout the years when the relevant deposits were made, cash 

offerings were unusually low in the three parishes while donations through check 

and online payments remained the same, as did church attendance. Once Garbacz 

was caught stealing, he completely stopped making deposits, and cash offerings 

went back up in those parishes. The deposits Garbacz made were in denominations 

characteristic of church offerings. And they tended to occur “shortly after weekend 

masses,” when Garbacz would have been able to steal without being detected. 
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Further, the amount of cash Garbacz was depositing far exceeded his salary, which 

was paid to him through direct deposit, and there was no evidence of other sources 

of income coming close to that amount. Although priests did sometimes receive tips 

or stipends for their services, the evidence showed that a high school chaplain would 

not have received such tips in a significant amount. After Garbacz was caught, he

removed all the money from his account and researched how to flee the country with 

stolen cash. In these circumstances, a reasonable juror could find beyond a 

reasonable doubt that each deposit involved stolen cash. See Proffit, 49 F.3d at 406.

B. 

We next turn to the sufficiency of the evidence supporting the conviction for

transporting stolen money under 18 U.S.C. § 2314. The statute prohibits 

transporting in interstate commerce any “money, of the value of $5,000 or more, 

knowing the same to have been stolen.” Id. The conviction was based on Garbacz’s 

2018 transportation of a cashier’s check for $15,379.60 and $7,000 in cash from 

South Dakota to Missouri, where he deposited the money into his St. Louis U.S. 

Bank account.

Garbacz argues that the money he transported was legitimate because his 

credit-union account contained a mixture of stolen cash and legitimate funds. He 

relies on United States v. Poole, where the defendant fraudulently acquired a check 

in the amount of $55,445.85 and deposited it into his Louisiana bank account, mixing 

it with the legitimate funds. See 557 F.2d 531, 533-34 (5th Cir. 1977). The 

defendant then issued a check in the same amount of money and transported it to be 

deposited in a Texas account. Id. at 534. The Fifth Circuit reversed the conviction 

because “there were sufficient surplus funds in the [Louisiana] account to pay that 

check without applying the proceeds of [the fraudulently acquired] check. Id. at 536.

According to Garbacz, on his salary of $20,000 to $24,000 per year, his total

earnings over the relevant six-year period would have exceeded $100,000 and, 

therefore, the transported $22,379.60 should be considered to be legitimate, not 
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stolen cash. That argument overlooks his spending during that period. Evidence 

indicated that Garbacz spent almost $400,000 between 2012 and 2018 through 

credit-card payments financed from his credit-union account. Of that, $145,000 was 

spent on chalices and other expensive items introduced at trial. A reasonable jury 

could find that Garbacz exhausted his legitimate money with those payments so that 

the remaining money transported to Missouri was stolen. Cf. United States v. Ratliff, 

893 F.2d 161, 163-64 (8th Cir. 1990) (holding that the jury’s conclusion was 

“entirely reasonable” that more than $5,000 of transported money was stolen, 

notwithstanding the use of $20,000 dollars from an “unidentified source” in the 

scheme). 

C. 

Garbacz also challenges the sufficiency of the evidence supporting his nine 

convictions for money laundering by concealment under 18 U.S.C. 

§ 1956(a)(1)(B)(i). To prove money laundering by concealment, the Government 

must show that 

(1) the defendant conducted, or attempted to conduct a financial 

transaction which in any way or degree affected interstate commerce or 

foreign commerce; (2) the financial transaction involved proceeds of 

illegal activity; (3) the defendant knew the property represented 

proceeds of some form of unlawful activity; and (4) the defendant 

conducted or attempted to conduct the financial transaction knowing 

the transaction was designed in whole or in part to conceal or disguise 

the nature, the location, the source, the ownership or the control of the 

proceeds of specified unlawful activity.

United States v. Sainz Navarrete, 955 F.3d 713, 719 (8th Cir. 2020) (brackets 

omitted). The money laundering convictions stem from Garbacz’s withdrawal of 

$50,500 from his bank account within four days of learning he was the suspect in a 

federal criminal investigation. Garbacz repeats his argument that “it is unclear that 

any given cash deposit was stolen,” and that even if it was, the cash was commingled 

with legitimate funds. We have already rejected both arguments, and we hold that a 
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reasonable jury could have found that the withdrawals “involve[d] the proceeds of” 

wire fraud and were part of an attempt to conceal those proceeds from Government

investigators. See § 1956(a)(1)(B)(i). Indeed, Garbacz’s concealment scheme was 

partially successful because the whereabouts of $40,000 of the withdrawn cash

remain unknown. 

D.

Garbacz argues there was insufficient evidence to prove he filed a false tax 

return by failing to report his deposits of stolen cash offerings to the IRS. A taxpayer 

files a false tax return when he “[w]illfully makes and subscribes any return . . . 

which contains or is verified by a written declaration that it is made under the 

penalties of perjury, and which he does not believe to be true and correct as to every 

material matter.” 26 U.S.C. § 7206(1). Stolen funds must be reported as income. 

United States v. Renner, 648 F.3d 680, 687 (8th Cir. 2011) (citing James v. United 

States, 366 U.S. 213, 219-20 (1961)); United States v. Milder, 459 F.2d 801, 803-04 

(8th Cir. 1972). Thus, the “intentional violation of a known legal duty” to report 

stolen income violates the statute. See United States v. Mathews, 761 F.3d 891, 893 

(8th Cir. 2014) (stating that willfulness “simply means a voluntary, intentional 

violation of a known legal duty”). 

“Intent may be inferred from conduct” such as “a consistent pattern of not 

reporting income or inconsistently reporting income.” Id. (internal quotation marks 

omitted). Here, a reasonable jury could have found that Garbacz’s failure to report 

income was willful because he consistently failed to report his illegitimate income

while successfully reporting his legitimate income. See id. at 393-94.

Garbacz claims he was entitled to a defense under Cheek v. United States, 498 

U.S. 192, 201 (1991), arguing that the Government failed to prove his underreporting 

was willful because he did not know he had a legal duty to report illegally acquired 
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cash.

1

 Moreover, he argues that because the stolen cash came from “a tax exempt 

source” (that is, the church), there was even less reason to believe that he would have 

to pay taxes on the stolen donations.

“Although ignorance of the law traditionally is no defense, Congress has 

carved out an exception to that rule in certain criminal tax statutes by making 

‘specific intent to violate the law’ one of the elements.” United States v. 

Hildebrandt, 961 F.2d 116, 118 (8th Cir. 1992) (quoting Cheek, 498 U.S. at 200). 

Citing the Cheek decision’s reference to a “good-faith misunderstanding and belief 

submission,” Cheek, 498 U.S. at 202 (emphasis added), the Government suggests 

that the Cheek defense does not apply because Garbacz did not submit evidence 

about his subjective belief. Instead, the defense argued before the jury merely that 

“the government hasn’t proven that [Garbacz] knew or believed his tax returns to be 

correct” and that the duty to report illegitimate income is “not something that 

everybody knows.”

Regardless of how we interpret the Supreme Court’s reference to an evidential

“submission,” we hold that there was sufficient evidence to overcome a Cheek 

defense. See id. In Cheek, the defendant claimed he had a good-faith belief that his 

wages were not income. Id. at 195-96. The Court noted that “in deciding whether 

to credit [the defendant’s] good-faith belief claim, the jury [is] free to consider any 

admissible evidence from any source showing that [the defendant] was aware of his 

duty to file a return and to treat wages as income, including evidence . . . of court 

decisions rejecting his interpretation of the tax law.” Id. at 202. Here, there was 

sufficient evidence for a jury to infer that Garbacz knew about his tax duties. 

Garbacz personally filed his tax returns each year and a fellow priest testified that 

Garbacz was proud of his ability to handle his tax affairs. Further, the duty to report 

stolen income is well established in law. See Renner, 648 F.3d at 687; Milder, 459 

1

Garbacz does not argue that the district court incorrectly instructed the jury 

on the issue of willfulness or that a separate jury instruction about good-faith belief 

under Cheek was required. See United States v. Ervasti, 201 F.3d 1029, 1041 (8th 

Cir. 2000). 
-15- 

F.2d at 803-04; James, 366 U.S. at 219-20. On this record, a reasonable jury could 

find that Garbacz was informed enough to know about his duty to report his income, 

including income from stolen cash. 

III.

We next turn to the claim that Garbacz should not have been ordered to forfeit 

the Chroma and Nureyev statues. On appeal of a forfeiture order, we review factual 

findings for clear error and the ultimate decision to order forfeiture de novo. United 

States v. Hull, 606 F.3d 524, 526-27 (8th Cir. 2010). 

Garbacz argues that the district court erred by applying the criminal-forfeiture 

statute instead of the civil-forfeiture statute because “general wire fraud” convictions 

are subject to civil forfeiture. He cites United States v. Waits, 919 F.3d 1090, 1096-

97 (8th Cir. 2019), where we vacated a forfeiture order in part because the 

Government relied “on an incorrect forfeiture statute”—the statute governing 

criminal forfeiture, 18 U.S.C. § 982(a)(3)(F)—and we noted that “[t]he statutes that 

authorize forfeiture of property traceable to a wire fraud conspiracy” are the civilforfeiture statute, 18 U.S.C. § 981(a)(1)(C), and 28 U.S.C. § 2461. But the criminalforfeiture statute was inappropriate in Waits because the Government had invoked 

subparagraph (a)(3)(F), which “applies only to offenses that involve a sale of assets 

acquired or held by the Federal Deposit Insurance Corporation, the National Credit 

Union Administration, or another conservator appointed by the Office of the 

Comptroller of the Currency,” and the assets in that case “did not meet those 

criteria.” Waits, 919 F.3d at 1096. Here, the Government seeks forfeiture through 

a different provision of the criminal-forfeiture statute, subparagraph (a)(2)(A), 

which authorizes forfeiture for wire fraud convictions “affecting a financial 

institution.” See 18 U.S.C. § 982(a)(2)(A) (listing qualifying statutes, including 18 

U.S.C. § 1343). The Government asserts that Garbacz’s use of banks to deposit, 

transfer, and withdraw cash affected those banks by increasing their risk of loss. 

Garbacz counters that the words “affecting a financial institution” refer to forms of 

wire fraud that carry a higher maximum penalty and sentence. See 18 U.S.C. § 1343
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(imposing a higher maximum sentence for wire fraud convictions “[i]f the 

violation . . . affects a financial institution”). Garbacz argues that because he was 

not convicted under the more specific provision carrying the higher maximum 

penalty and sentence, the criminal-forfeiture statute cannot apply.

Regardless of which statute applies, the Chroma and Nureyev statues were 

forfeitable. See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance 

that does not affect substantial rights must be disregarded.”). Under both statutes, 

the Government bears the burden of proving a sufficient nexus between the property 

and the offense by a preponderance of the evidence. See 18 U.S.C. §§ 981(a)(1)(C), 

982(a)(2)(A); United States v. Beltramea, 785 F.3d 287, 290 (8th Cir. 2015). As 

relevant here, the required nexus in the criminal forfeiture statute is that the property 

must “constitut[e ]or [be] derived from[] proceeds the person obtained directly or 

indirectly, as the result of [the offense].” § 982(a)(2)(A) (emphasis added). The 

civil forfeiture statute requires that the property “constitutes or is derived from 

proceeds traceable to” the offense. § 981(a)(1)(C) (emphasis added). The Chroma 

and Nureyev statues satisfy both standards. The district court found by a 

preponderance of the evidence that Garbacz purchased the statues with proceeds of 

his wire fraud scheme. This was not clear error because there was ample evidence 

that immediately after Garbacz purchased the statues, he paid off his credit-card debt 

with stolen cash that he had deposited into his credit-union account. He bought the 

Nureyev statue for $12,500 with a credit card, and three days later, he transferred 

$12,692.17 to his credit card from his credit-union account. The Chroma statue cost 

$14,000, and Garbacz transferred $10,182.74 to his credit card on the day he 

purchased the statue and transferred $6,000 more eleven days later. Each statue cost 

more than half of Garbacz’s legitimate annual income, the record undermined 

Garbacz’s claim that his family had been sending him thousands of dollars, and the 

evidence showed that Garbacz had been depositing large amounts of stolen cash into 

his credit-union account for years. The statues, then, were derived from proceeds 

that were “obtained directly or indirectly” as a result of wire fraud and were 

“traceable to” wire fraud. See §§ 982(a)(2)(A), 981(a)(1)(C). Accordingly, we 

affirm the forfeiture order.
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IV.

Next, we address Garbacz’s claim that the restitution award to the three 

parishes and the IRS was improper. We review the district court’s decision to award 

restitution for abuse of discretion and the district court’s factual findings about the 

amount of loss for clear error. United States v. Chalupnik, 514 F.3d 748, 752 (8th 

Cir. 2008). 

The Government has the burden to prove the amount of restitution based on a 

preponderance of the evidence, see id. at 754, and a restitution award is “limited to 

the victim’s provable actual loss,” United States v. Adejumo, 848 F.3d 868, 870 (8th 

Cir. 2017). However, “a district court is charged only with reasonably estimating 

the loss when the amount lost through fraud is difficult to estimate.” Id. at 870

(internal quotation marks omitted).

Garbacz argues that the restitution awards were based on the “unjustified” 

finding that “every penny of each deposit was stolen from the churches.” He relies 

on evidence that he would have “received a nominal amount of cash tips” for his 

services as a priest. But as we have discussed, the evidence supported a finding that 

each charged deposit involved stolen cash; that Garbacz served as a school chaplain 

and would not have received a significant amount in tips; that “cash collections were 

unusually low . . . during the years in which the Defendant had access to the 

parishes”; and that after Garbacz left South Dakota, those parishes’ cash collections 

increased in an unusual amount. Therefore, the district court did not clearly err in 

finding that the sum of the illegal deposits, $259,696.19, less $1,000 of possible 

stipends, was stolen from the parishes. 

Garbacz also claims that the district court abused its discretion by ordering 

restitution when there was uncertainty about the specific loss of each parish. He 

relies on testimony suggesting that the parishes had poor bookkeeping practices, 

making it impossible to know exactly how much had been stolen from an individual 

parish. Although circumstances make it “difficult to estimate” the loss of an 
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individual parish, we think that the district court’s equal division of the total award 

is a “reasonabl[e] estimate[]” of the loss, given that each parish had agreed to and 

requested that outcome. See id. Although concerns may arise in another case where 

the uncertainty of individual losses raises doubts about the total amount of loss, see 

id. at 871, here, the total amount is calculable from the deposits and is tied to the 

three parishes. And as the Government points out, the district court’s award is likely 

lower than the actual amount stolen because it does not account for cash that Garbacz 

may have spent outright instead of depositing into his credit-union account. 

Therefore, the district court did not abuse its discretion in awarding $258,696.19 and 

dividing it equally among the parishes. 

V.

Finally, Garbacz asks us to vacate his sentence and remand for resentencing 

to the extent that we reverse his convictions and, in any event, to remand for 

resentencing because the district court erred in applying the “sophisticated means” 

sentencing enhancement. Although we reverse Garbacz’s convictions for Counts 

39, 41, and 44, we do not remand for resentencing on that ground because the 

sentences for those counts ran concurrently with the sentences for the first sixty

counts. See Nguyen, 829 F.3d at 922 (“[B]ecause the sentence for this conviction 

ran fully concurrently with [the defendant’s] . . . sentence on multiple properly 

obtained counts of conviction—including seven other mail-fraud counts—we do not 

disturb the prison sentence.”); United States v. White Bull, 646 F.3d 1082, 1096 (8th 

Cir. 2011) (declining to remand for resentencing where “the vacated convictions 

would not affect [the defendant’s] sentence for” the remaining count). We do, 

however, remand to the district court with instructions to vacate the $100 special 

assessments associated with Counts 39, 41, and 44. See Nguyen, 829 F.3d at 922. 

“Whether an offense involved sophisticated means is a factual finding that we 

review for clear error.” United States v. Belfrey, 928 F.3d 746, 753 (8th Cir. 2019)

(internal quotation marks omitted). The sentencing guidelines instruct courts to 

increase a defendant’s offense level by two levels if the offense “involved 
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sophisticated means and the defendant intentionally engaged in or caused the 

conduct constituting sophisticated means.” U.S.S.G. § 2B1.1(b)(10)(C). An offense 

involved sophisticated means if, “viewed as a whole,” the offense conduct is 

“notably more intricate than that of the garden-variety offense.” Belfrey, 928 F.3d 

at 753 (brackets omitted). “Repetitive and coordinated conduct, though no one step 

is particularly complicated, can be a sophisticated scheme.” United States v. 

Meadows, 866 F.3d 913, 917-18 (8th Cir. 2017) (upholding the sophisticated-means 

enhancement where a fraudulent scheme “lasted for around seven years”; defrauded 

a large amount of money from a large number of people; and involved regularly

lying to investors, Ponzi payments, and improper use of tax and investment forms).

In United States v. Mitchell, we held that the defendants’ offenses involved 

sophisticated means where they “fraudulently obtained [a] Social Security number”; 

“fabricated employment information”; and over a period of months, created 

counterfeit driver’s licenses and credit cards containing the victims’ account 

information. 914 F.3d 581, 586-87 (8th Cir. 2019). They used those credit cards to 

buy gift cards which, in turn, they used to purchase “more than $16,000 worth of 

merchandise and gift cards.” Id. at 587. Although none of the activities “[t]aken 

alone” was “extraordinarily intricate,” the defendants’ “repetitive and coordinated 

conduct . . . over the course of several months amounted to a sophisticated scheme.” 

Id. at 586-87 (internal quotation marks omitted).

In light of Mitchell, it was not clear error to find that Garbacz employed 

sophisticated means. His scheme lasted six years, and he repeated the same steps to 

steal cash donations from three parishes while evading discovery. Those steps 

involved obtaining tamper-proof bags like those used by the parishes, forging 

handwriting, and resealing the cash he did not take inside the substituted bags to 

evade detection. The evidence also showed that Garbacz further protected his

scheme by paying to engrave his valuables so that they looked like gifts instead of 

purchases that he could not afford on his salary as a priest. As in Mitchell, this 

“repetitive and coordinated conduct” is sufficiently intricate to warrant the 

sophisticated-means enhancement. See id. at 587. 
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VI.

For the foregoing reasons, we reverse the convictions on Counts 39, 41, and 

44, and we remand to the district court to vacate the special assessments associated 

with those counts. We otherwise affirm the sentence, the remaining convictions, the 

forfeiture order, and the restitution award. 

______________________________