United States v. Hagen

917 F.3d 668 (2019) United States Court of Appeals for the Eighth Circuit 2019-02-28

criminal appeal from jury convictions (conspiracy, three wire-fraud and four mail-fraud counts); sufficiency of the evidence. Mail-fraud Counts 5, 6 and 7 vacated for insufficient evidence; mail-fraud Count 8 affirmed. (result: mixed)

Facts

  1. 4 Knowing participation with intent to defraud not no-evidence
    Each offense requires proof of intent to defraud, proof that the defendant willfully participated in a scheme with knowledge of its fraudulent nature and the intent to achieve illicit objectives.
  2. 4 Knowing participation with intent to defraud not no-evidence
    When the time came to bring the cattle to pasture a month later, Hagen said he did not have the land to graze the cattle or the money to refund the Krizes.
  3. 4 Knowing participation with intent to defraud not no-evidence
    The trial evidence established that Hagen had enough land to graze Kriz's 50 cow-calf pairs for the 2013 grazing season, well within the default BIA ratio of 91.26 pairs for the land HBCC leased that season.
  4. 4 Knowing participation with intent to defraud not no-evidence
    The letter Hagen sent in August offered to belatedly fulfill his end of the deal by grazing Kriz's cattle for the rest of the season.
  5. 4 Knowing participation with intent to defraud not no-evidence
    The government failed to prove he had no intent or no ability to carry out that offer.
  6. 4 Knowing participation with intent to defraud not no-evidence
    Thus, the evidence did not establish either a scheme to defraud or Hagen's specific intent to defraud Robert Kriz when the grazing contract was mailed in April 2013.
  7. 4 Knowing participation with intent to defraud satisfied proved
    At this time, HBCC had leased only 40 acres of pasture, which could support 6.67 cow-calf pairs under the BIA default ratio.
  8. 4 Knowing participation with intent to defraud satisfied proved
    In response, Hagen repeatedly called the Bergs, assuring them he had enough leased land but insisting on full payment up front.
  9. 4 Knowing participation with intent to defraud satisfied proved
    The Bergs grazed no cattle on HBCC pasture and never received a refund.
  10. 4 Knowing participation with intent to defraud satisfied proved
    Based on this evidence, the jury reasonably found that Hagen had the intent to defraud Robert Berg.
  11. 4 Knowing participation with intent to defraud satisfied proved
    As this was a victim who suffered tangible loss, "the scheme itself ... serve[d] as evidence of [Hagen's] intent to defraud."
  12. 4 Knowing participation with intent to defraud satisfied proved
    Moreover, Holy Bull testified that she and Hagen knew the land could not support the cattle they agreed to graze but took the money anyway.
  13. 4 Knowing participation with intent to defraud satisfied proved
    However, in June 2014, Hagen had only administratively appealed the BIA's decisions to lease HBCC only 40 acres that season.
  14. 6 Mailing for execution of the scheme not no-evidence
    Under 18 U.S.C. ยง 1341, the alleged use of the mail must be "sufficiently closely related to," and operate to further, the defendant's scheme.
  15. 6 Mailing for execution of the scheme not no-evidence
    The letters underlying Counts 6 and 7 were sent in August of 2013, some four months after Hagen received payments from Kriz and Stluka for 2013 grazing and three months after the start of the grazing season.
  16. 6 Mailing for execution of the scheme not no-evidence
    Thus, the letters were not sent for the purpose of executing the alleged scheme to defraud these producers, for Hagen had already received their payments for cattle HBCC was not grazing.
  17. 6 Mailing for execution of the scheme not no-evidence
    Mailing the letters had no effect on the success or failure of the alleged scheme; it was already completed.
  18. 6 Mailing for execution of the scheme not no-evidence
    Indeed, when asked on direct exam what their responses were to this letter, Steve Stluka testified, "I just kind of laughed. ... I mean, it's too late," and Robert Kriz testified, "My honest reaction was, why do we want to take cattle down there? We've already lost $35,000 between the two of us."