United States Court of Appeals for the Eighth Circuit · 2019-02-28
18usc1341: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)
Case and law context
Role: applied; posture: 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; claim:
Uncertainty
other: the opinion says "four counts of mail fraud" and "three counts of wire fraud"; from its count-by-count description Counts 5-8 are the mail counts and Counts 2-4 the wire counts (18 U.S.C. § 1343). Count 1 is the § 1349 conspiracy. Only the mail counts are recorded here.
Element intent: route: the court does not use the words breach of contract for this count (it does for wire Count 3); the sub-question decided is the same - non-performance versus intent not to perform when the money was taken.
Element intent: polarity: the pending BIA appeal is the fact Hagen relied on for an honest expectation of more land (cuts-against); the quoted sentence is the court discounting it
Misfit
Flash's two blocks (furtherance and intent on "mail fraud Count 3") were removed: Count 3 (cashing Penner's check) is a WIRE-fraud count under 18 U.S.C. § 1343, as is Count 2. The court's "breach of contract is not fraud" sentence (@11661..11894, quoted as an intent rule in 18usc1341.law) was written about that wire count; it is not quoted here.
B · Case × element grid
Top-level elements follow claim order in panels of up to six elements. Case rows repeat across panels. Every recorded block retains its holding and basis; multiple blocks are not merged into a case-level verdict. ✓ satisfied · ✗ not satisfied · ○ not reached · · not addressed. Muted blocks are not counted. Sub-element evidence remains on case and element pages.
Elements 1–6 of 7
| Case | Scheme or artifice to defraud | Traditional money or property as an object | Material deception | Knowing participation with intent to defraud | Statutory mailing or carrier act | Mailing for execution of the scheme |
|---|---|---|---|---|---|---|
| United States v. Hagen — 917 F.3d 668 (2019) · United States Court of Appeals for the Eighth Circuit · 2019 (18usc1341: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | · not addressed | · not addressed | · not addressed | · not addressed |
Elements 7–7 of 7
| Case | Separate section 1346 theory; outside property-fraud claim |
|---|---|
| United States v. Hagen — 917 F.3d 668 (2019) · United States Court of Appeals for the Eighth Circuit · 2019 (18usc1341: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | · not addressed |
Instances and excluded annotation blocks
| Case | Element | Holding and scope | Pattern | Exact source quotations |
|---|---|---|---|---|
| United States v. Hagen — 917 F.3d 668 (2019) · United States Court of Appeals for the Eighth Circuit · 2019 — not · no-evidence (18usc1341: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | Mailing for execution of the scheme | not Counted merits instance applied / merits basis: no-evidence; party: Keith Hagen; count: Counts 6 and 7, mail fraud: August 2013 letters to Kriz and Stluka offering late grazing; subject: party=Keith Hagen; count=Counts 6 and 7, mail fraud: August 2013 letters to Kriz and Stluka offering late grazing Jury conviction reversed for insufficiency. The government's lulling theory (Lane) failed because letters accepting responsibility and offering performance would not postpone complaints, and neither recipient testified to being lulled. | apology letters offering belated performance, mailed months after the victims' payments were received; lulling theory rejected | 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.Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [14550:14757] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.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."Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [16022:16319] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.Under 18 U.S.C. § 1341, the alleged use of the mail must be "sufficiently closely related to," and operate to further, the defendant's scheme.Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [14265:14407] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.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.Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [14758:14944] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.Mailing the letters had no effect on the success or failure of the alleged scheme; it was already completed.Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [14945:15053] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967. |
| United States v. Hagen — 917 F.3d 668 (2019) · United States Court of Appeals for the Eighth Circuit · 2019 — not · no-evidence (18usc1341: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | Knowing participation with intent to defraud | not Counted merits instance applied / merits basis: no-evidence; party: Keith Hagen; count: Count 5, mail fraud: grazing contract mailed to Robert Kriz, April 2013; subject: party=Keith Hagen; count=Count 5, mail fraud: grazing contract mailed to Robert Kriz, April 2013 Jury conviction reversed for insufficiency: intent is measured when the contract was mailed; non-performance and no refund did not show a plan not to perform. The court speaks of "a scheme to defraud or ... specific intent" together; recorded under intent. | advance payment taken for grazing later not provided, where leased land sufficed for this customer's herd and performance was later offered | 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.Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [12707:12862] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.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.Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [13376:13583] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.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.Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [13584:13717] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.The government failed to prove he had no intent or no ability to carry out that offer.Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [13718:13804] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.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.Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [5405:5600] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.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.Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [13805:13970] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967. |
| United States v. Hagen — 917 F.3d 668 (2019) · United States Court of Appeals for the Eighth Circuit · 2019 — satisfied · proved (18usc1341: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md)) | Knowing participation with intent to defraud | satisfied Counted merits instance applied / merits basis: proved; party: Keith Hagen; count: Count 8, mail fraud: Robert Berg's mailed $35,000 check, May 2014; subject: party=Keith Hagen; count=Count 8, mail fraud: Robert Berg's mailed $35,000 check, May 2014 Sufficiency upheld on the mail count (and the paired wire Count 4). The pending BIA appeal is the only fact Hagen offered for an honest expectation of more land; the court held it could not have been decided before the season. | contracting to graze 100 pairs on 40 leased acres, repeating the assurance of sufficient land to obtain a second advance payment, then going silent | At this time, HBCC had leased only 40 acres of pasture, which could support 6.67 cow-calf pairs under the BIA default ratio.Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [17053:17177] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.In response, Hagen repeatedly called the Bergs, assuring them he had enough leased land but insisting on full payment up front.Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [17553:17680] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.The Bergs grazed no cattle on HBCC pasture and never received a refund.Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [17905:17976] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.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.Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [18703:18842] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.However, in June 2014, Hagen had only administratively appealed the BIA's decisions to lease HBCC only 40 acres that season.Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [19051:19175] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.As this was a victim who suffered tangible loss, "the scheme itself ... serve[d] as evidence of [Hagen's] intent to defraud."Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [18550:18675] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.Based on this evidence, the jury reasonably found that Hagen had the intent to defraud Robert Berg.Source: docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [17977:18076] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967. |
Court interpretations recorded from this case
interpretation
Even if Hagen broke a promise to refund $12,000 for the early termination, breach of contract is not fraud, and the cashing of Penner's check in April was not in furtherance of any dispute that arose at the end of the grazing season.
United States v. Hagen — 917 F.3d 668 (2019) · United States Court of Appeals for the Eighth Circuit · 2019 (18usc1341: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md))
Even if Hagen broke a promise to refund $12,000 for the early termination, breach of contract is not fraud, and the cashing of Penner's check in April was not in furtherance of any dispute that arose at the end of the grazing season.Source:
docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [11661:11894] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.Judicial construction of the scheme language requires fraudulent intent, distinct from negligence or contract breach. A deliberate material deception aimed at obtaining the victim's property suffices without intent to leave the victim economically worse off. Earlier intent-to-harm formulations must be read subject to Kousisis.
interpretation
Under 18 U.S.C. § 1341, the alleged use of the mail must be "sufficiently closely related to," and operate to further, the defendant's scheme.
United States v. Hagen — 917 F.3d 668 (2019) · United States Court of Appeals for the Eighth Circuit · 2019 (18usc1341: author: Flash3 · QA: FIX (Fable, neov2/cases/TRIAGE-Flash.md))
Under 18 U.S.C. § 1341, the alleged use of the mail must be "sufficiently closely related to," and operate to further, the defendant's scheme.Source:
docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [14265:14407] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.Evaluate the mailing against the actual scope and completion of the scheme. Bridge, 553 U.S. 639, 647 (2008), states the substantive mail-fraud nexus while deciding a civil RICO case; its separate RICO injury requirements do not become mail-fraud elements. Lulling mailings can further an ongoing scheme, but Hagen rejected incidental letters after the charged scheme was complete; Gross found collection mailings within an ongoing kickback scheme at the indictment stage.
interpretation
Even if Hagen broke a promise to refund $12,000 for the early termination, breach of contract is not fraud, and the cashing of Penner's check in April was not in furtherance of any dispute that arose at the end of the grazing season.
United States v. Hagen — 917 F.3d 668 (2019) · United States Court of Appeals for the Eighth Circuit · 2019 (18usc1343: author: unavailable · not independently reviewed)
Even if Hagen broke a promise to refund $12,000 for the early termination, breach of contract is not fraud, and the cashing of Penner's check in April was not in furtherance of any dispute that arose at the end of the grazing season.Source:
docroot/ir/caselaw/f3d_917.jsonl#/f3d/917/0668-01; Unicode character offsets [11661:11894] (end exclusive); SHA-256 f4086637fbe3659b9c3436280b529e9f82158bf57ed3b57d504b7c7f7ebea967.Judicial construction of the scheme language requires fraudulent intent, distinct from negligence or contract breach. A deliberate material deception aimed at obtaining the victim's property suffices without intent to leave the victim economically worse off. Earlier intent-to-harm formulations must be read subject to Kousisis.