Petition for Writ of Certiorari — Rehak v. United States

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Supreme Coun. U.S.

FILE

No. 994129 MAR 16 2010

QFFIPE OF THE CLERK

Supreme Court of the United States

TIMOTHY CONRAD REHAK

AND MARK PAUL NAYLON,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Paul Engh

Counsel of Record

Suite 215, U.S. Bank Plaza

220 South Sixth Street

Minneapolis, MN 55402

(612) 252-1100

engh4@aol.com

Attorney for Petitioners

2010 — Bachmaae Legal Printing & (612) 339-9518 @ 1-800-715-3582 @ Fax (612) 337-8053

iT.

QUESTIONS PRESENTED

WHERE PETITIONERS WERE ACCUSED OF

CONSPIRACY TO DEPRIVE VINCENZO

PELLIGATTI OF HIS PROPERTY RIGHT TO

DUE PROCESS, 18 U.S.C. 241, WHERE MR.

PELLIGATTI DID NOT EXIST AND BY COURT

AUTHORIZED WARRANT HAD NO LEGAL

INTEREST IN “HIS” MONEY, DID THE TRIAL

COURTS REFUSAL TO DEFINE WHAT “DUE

PROCESS” MEANS AND THAT INDIVIDUAL

IS NOT DEPRIVED OF IT IF HE HAS

AVAILABLE A POST-DEPRIVATION REMEDY

CONSISTENT WITH PARRATT AND HUDSON,

DENY PETITIONERS THEIR OWN DUE

PROCESS RIGHT TO A FAIR TRIAL?

DOES THE FEDERAL THEFT STATUTE, 18

U.S.C. 641, PERMIT CONVICTION FOR

TEMPORARILY TAKING MONEY PURSUANT

TO WARRANT WHICH IS FULLY

ACCOUNTED FOR, CONSISTENT WITH

MORISSETTE V. UNITED STATES AND

UNITED STATES V. LEON?

TABLE OF CONTENTS

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Opinion Below... .<<«:c«s90csessdieenee an l

Statement of Jurisdiction... .....<ceccoccsscovescerscesss 2

Constitutional and Statutory Provisions luvolved. 2

Statement of the Case............ ianiadammanaaii aa Ee 3

Reasons For Granting the Writ.......................... 10

Conclusion... ...<00ssre0cesvesdec —

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TABLE OF AUTHORITIES

CASES

Abel v. United States, 362 U.S. 217(1960).......... 13

Bailey v. United States, 516 U.S. 137 (1995)...... 18

Brecht v. Abrahamson, 507 U.S. 619 (1993)....... 17

Caplin & Drysdale, Chartered v. United States,

i iuddicc ode vegtdbuhesutonechinses 11

Corley v. United States, 129 S.Ct. 1558 (2009)... 19

Daniels v. Williams,

474 U.S. 327 (1986)................. 8, 13, 15, 16, 17

Davidson v. Cannon, 474 U_S. 344 (1986)........... 10

Fravcis v. Franklin, 471 U.S. 307 (1985)............ 17

Griffin v. United States, 502 U.S. 46 (1991)....... 17

Herring v. United States, 129 S.Ct. 695 (2009)..13, 20

Hudson v. Palmer, 468 U.S. 517 (1984)......... passim

Hudson v. Michigan, 547 U.S. 586 (2006)......... 13

lanelli v. United States, 420 U.S. 770 (1975)...... 10

Morissette v. United States,

ee Oe re a ide cecntiscncecsenkes. 9, 18, 19, 20

Parratt v. Taylor, 451 U.S. 527 (1980).......... passim

Pearson v. Callahan, 129 S.Ct. 808 (2009)....... 13, 20

Salinas v. United States, 522 U.S. 52 (1997)....... 10

Schad v. Arizona, 501 U.S. 624(1991)................ 17

Stromberg. v. California, 283 U.S. 359 (1931)..... 17

United States v. Begay, 128 S.Ct. 1581 (2008)..... 18

United States v. Feola, 420 U.S. 671 (1975)......... 10

United States v. Gaggi,

811 F.2d 47 (2nd Cir.), cert. denied,

482 U.S. G29 (19B7)-....<0<cccccecc. 00 seeceeeoeeee. 12

United States v. Kemble,

197 F.2d S16 (Sed Cir. 1952).......00200.000000000. 19

United States v. Leon, 468 U.S. 897 (1984)...... 13, 20

United States v. Lopez, 514 U.S. 549 (1995)........ 18

United States v. Maraviila,

907 F.216 ZIG (ist Car. 1990).............0020020000. 12

United State v. McClean,

528 F.2d 1250 (2nd Cir. 1976).................... 12

United States v. Santos, 128 S. Ct. 2020 (2008).... 18

Wilkins v. United States,

376 F.2d 552 (1967), cert. denied,

a Se Ce ivktanetcttsstcavdevateceiesens 12-13

STATUTES

Ft Eh REESE SIR pn aprmrecey erie ovee a oer tene meee passim

Sy CA I citiin nadaiconniubidarhtoachiniademenses passim

21 U.S.C. 881...... saseabeliibearidhaiaaaiohaenicababaaincabcdienibitas 1}

RE I ciisnsiuaiseusdoneenpdasekensiadenombiaibeaneiin 2

ST I ss ce dincniecindmaienineeeeonnmmentainaagieaa 16

Rule 10, Rules of the

United States Supreme Court

n. Stat. 609.5314, Subd. 2 (b)(3)

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17, 20

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2009

TIMOTHY CONRAD REHAK AND

MARK PAUL NAYLON,

PETITIONERS,

VS.

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The Petitioners, Timothy Conrad Rehak and

Mark Paul Naylon, respectfully pray that a Writ of

Certiorari issue to review the judgment of the United

States Court of Appeals for the Enxghth Circuit.

LIST OF PARTIES

Timothy Conrad Rehak and Mark Paul Naylon, the

Petitioners.

United States of America, the Respondent.

OPINION BELOW

United States v. Rehak, 589 F.3d 965 (8th Cir. 2009).

STATEMENT OF JURISDICTION

The Eighth Circuit Court of Appeals handed

down its decision on December 22, 2009. This petition

is timely filed, within ninety days. Jurisdiction of

this Court is conferred by 28 U.S.C. 1254 (1).

CONSTITUTIONAL PROVISION

The Fifth Amendment provides, in part, that

no defendant shall “. . . be deprived of life, liberty or

property without due process of law .. .”

STATUTES

18 U.S.C. Sec. 241 provides, in part:

If two or more persons conspire to

injure, oppress, threaten, or intimidate any

person in any State, Territory, Commonwealth,

Possession, or District in the free exercise or

enjoyment of any right or privilege secured to

him by the Constitution or laws of the United

States, or because of his having so exercised

the same;...

They shall be fined under this title or

imprisoned not more than ten years, or both.

18 U.S.C. Sec. 641 provides, in part:

Whoever embezzles, steals, purloins, or

knowingly converts to his use or the use of

another, or without authority, sells, conveys or

disposes of any record, voucher, money, or

thing of value of the United States... .

Whoever receives, conceals, or retains

the same with intent to convert it to his own

use or gain, knowing it to have been

embezzled, stole, purloined or converted —

Shall be fined under this title or

imprisoned not more than ten years, or both.

STATEMENT OF THE CASE

The Petitioners were convicted of conspiring to

violate the civil rights of a person who didn’t exist,

and of temporarily stealing government funds, seized

pursuant to a valid warrant, which were fully

accounted for and then forfeited.

By the summer of 2004, Petitioner Timothy

Conrad Rehak (Officer Rehak) had served eighteen

years on patrol with the St. Paul Police Department.

(T. 325, 371). Shawn Arvin was a drug addict, petty

crook, a sometime informant Officer Rehak had used

for more than ten years. (T. 369). In early 2004, Arvin

had been arrested on federal drug charges. He was

facing a minimum of ten years, seventeen on the high

end. (T. 779, 857). In order to cut his time, Arvin met

with the FBI on May 10, 2004, and offered to record

Officer Rehak. (T. 706).

The First Integrity Test

On November 3, 2004, F.B.I. agents placed

$13,500.00 inside Room 503, of the Kelly Inn hotel in

St. Paul. (T. 78, 506; Govt. Exh. 10). A camera was

installed, but it did not record the sound. (Govt. Exh.

12; T. 180). The Kelly Inn records indicated that the

room was rented to Vincenzo Pelligatti from 5801

Whipple, Chicago, Illinois, 60624; he owned a Lexus

automobile with an unidentified [linois plate, no

date of birth given (T. 136, 874). The Government

conceded Pelligatti didn’t “even exist.” (T. 975). The

fictional Pelligatti was to check out the following day.

(T. 135).

Shawn Arvin told Officer Rehak that “Vinnie”

had been recently “arrested” in Wisconsin, and was

attempting to retrieve his money and drugs from the

Kelly Inn. (T. 775-767; Govt. Exh. 6). Officer Rehak

responded that he’d attempt to find the contraband.

(T. 924). On the way to the hotel, Rehak called

Petitioner Mark Paul Naylon (Mr. Naylon), who

worked for the Ramsey County Sheriffs Special

Investigations Unit. (T. 82-83, 470). Their

supervising Sergeant, Rollie Martinez, was contacted

to assist. (T. 473).

When the Kelly Inn desk clerk declined a

request to search the room, Sergeant Martinez left to

obtain a warrant. (T. 137). Upon his return, the

Petitioners and Sergeant Martinez entered at 3:38

P.M.. (T. 463). The video showed Officer Rehak

taking a duffel bag from a dresser, in which he

discovered the F.B_I.’s $13,500.00. (T. 86). At 3:39

P.M., Officer Rehak handed several packets of bills to

Mr. Naylon, who had motioned for the money and

who then placed $6,000.00 in his right coat pocket.

(T. 88, 104).

The initial search inventory indicated that

$7,500.00 had been taken from the room. (T. 183,

186). That number omitted the $6,000.00. (T. 350-

354).

After the search, law enforcement databases

were queried to determine whether Pelligatti had a

criminal record in Minnesota, Illinois, Indiana or

Wisconsin; the FBI’s data base was also checked. (T.

400-410).

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Though such checks are an essential part of

police work, there is no guarantee of success. Aliases

are often used. The suspect may not be in a database

because of lack of criminal justice contact. (T. 325,

442, 445).

An authentic Vincenzo Pelligatti, say, may

never have been arrested in Illinois, or Indiana. He

may not have had a Minnesota license. No

confirmation of him was found anywhere. (T. 411).

Later in the evening of November 4th, Officer

Rehak and Naylon called Sergeant Martinez to

inform him that an extra $6,000.00 has been

discovered inside the hotel room. Martinez suggested

the $13,500.00 be stored and documented the

following business day. (T. 191-92).

When Arvin called to discuss the search and its

fruits, Officer Rehak told him the entire $13,500.00

was recovered. (T. 792). On a contemporaneous

report, Officer Rehak indicated that “inside this bag I

recovered thirteen thousand five hundred dollars.” (T.

798, 894, 898). All of the Kelly Inn funds were

inventoried at the Ramsey County Sheriffs office. (T.

197). The search warrant return was changed to

reflect the total amount seized. (T 1098; Govt. Exh.

14).

Later that fall of 2004, the F.B_I. asked

another federal agency to recount the money. Not a

dollar was missing. (T. 903, 907).

Still later, a Ramsey County forfeiture

specialist Anne Cardenas obtained a report of the

search and initiated a successful forfeiture. No claim

was filed on Pelligatti’s behalf. (T. 686-688, 908; Govt.

Exh. 19).

The second test

After a six month pause, a second integrity test

was conducted in mid-July 2005. (T. 802). An out-of-

state vehicle had been stolen, Arvin told Officer

Rehak, linked to a drug dealer/car thief in St. Paul

named “Joey.” (T. 806). The F.B.I. had parked a

stolen car with Illinois plates, placing imside a duffle

bag filled with drug wrappings and cash. (T. 803).

The clandestine video feed featured sound this time.

(T. 517, 803).

Officer Rehak found the car, had a data base

check run and set up surveillance in order to catch

the driver if he could. (T. 812). Arvin repeatedly

insisted there would be a large quantity of narcotics

in the abandoned car. (T. 819, 936, 948). After two

days, Petitioners opened the car door and found the

bag with moncy inside, along with the narcotics

wrapping materials. (T. 520; Govt. Exhs. 43A, 48).

Mr. Naylon suggested to Officer Rehak that the lack

of dope might have meant a set up. (T. 564).

Every dollar of the $7,880.00 was inventoried,

claimed by no one and then forfeited. (T. 731, 735).

The trial and appeal

On March 4, 2008, Petitioners were charged by

the Grand Jury with six counts of Wire Fraud

(deprivation of honest services), 18 U.S.C. 1343 and

1346; Theft of Government Funds, 18 U.S.C. 641

(Count 7), and Conspiracy to Violate Civil Rights, 18

U.S.C. 241 (Count 8). Docket Entry 1.

Defense motions for dismissal of Counts 7 and

8 were argued pretrial (Docket Entries 23 and 24)

and renewed at the close of evidence. (Docket Entries

49, 55, 56; T. 971). “The last count, your Honor, is

this conspiracy to deprive someone of their due

process rights to property, but that person doesn’t

even exist.” (T. 975). At a pretrial hearing, district

court Judge Patrick Schiltz expressed hesitation as to

the theft count. “The issue of whether 18 U.S.C. 641

requires — whether you can violate it by temporarily

taking something .. . I just don’t know the answer to

that.” (July 10, 2008 hearing, p. 62).

In its opening statement, the government

didn’t explicate the civil rights violation. In closing,

the government argued: “One of the civil rights is the

police don’t get to take your property without due

process of law. Police can’t steal property. But civil

rights of citizens meant nothing, if anything to these

defendants.” (T. 1303). “And once in the room they

steal the money. They deprive without due process of

law. In this country that violates our constitution, our

civil rights.” (T. 1304). Pelligatti’s precise “civil rmght”

was left unexplained.

In rebuttal, the government defended it this

way: “They can’t take property without due process

just to do whatever they want with it.” And, “[t]his is

not upholding the constitution.” (T. 1388).

Regarding the theft count, the government

argued there must be proof of an intent to deprive

“the owner's use or benefit of the money, that is Mr.

Pelligatti.” (T. 1305). The Indictment listed the

United States as the owner. Docket Entry 1.

The district court’s jury instructions did not

define the constitutional right of due process.

Regarding the elements of theft, Petitioners

requested that the jury make a distinction between

the temporal and permanent, and that the theft itself

had to be permanent. (Defense Requests 41 and 49).

The jury acquitted on the Counts 1-4, the

Court on Counts 5 and 6. The jury convicted on

Counts 7 and 8. (Docket Entry 101). On September

12, 2008, the District Court denied the defense

motions for a new trial. Docket Entries 103 and 122.

Officer Rehak was sentenced to thirty-five months in

prison, ordered to pay a $7,500.00 fine and a special

assessment of $200.00. Mr. Naylon received a thirty-

month term, with the same fine and assessment.

(Docket Entries 131, 133). Judgments were entered

on the 9th of February, 2009.

On appeal, Petitioners raised several issues.

Two remain here. The Circuit rejected Petitioners’

claim that the due process violation had to be defined

for the jury, the violation itself cabined by Parratt v.

Taylor, 451 U.S. 527 (1980), Daniels v. Williams, 474

U.S. 327 (1986) and Hudson v. Palmer, 468 U.S. 517

(1984). These cases, the Circuit held, were

“inapposite here, where the focus is on the

defendant’s agreement, not the victim’s damages.”

Rehak, 589 F.3d at 972.

The Petitioners raised the related issue of

whether a civil rights conspiracy could be proven

where its object was not a “person” within the

meaning of 18 U.S.C. Sec. 241. Even if Pelligatti had

existed, Petitioners claimed, there was no protected

property right impacted when police search pursuant

to a court authorized warrant.

The Circuit's ruling:

The fact that Pelligatti was fictitious was

unknown to [Petitioners]. This circumstance

prevented them from actually violating a

person’s due process rights. While it was

factually impossible to violate his rights,

defendants were charged and convicted of

conspiring to violate his rights. The crime was

committed upon their agreement to steal his

money. That they were unsuccessful is

irrelevant to their culpability for conspiring.

Rehak, 589 F.3d at 971.

The Petitioners also argued that the theft

conviction conflicted with the teaching of Morissette

v. United States, 342 U.S. 246 (1952). Morissette held

that “[p]robably every stealing is a conversion, but

certainly not every conversion is stealing.” Id. at 271.

The Circuit read Morissette broadly: the theft statute

“reaches all instances where ‘one may obtain

wrongful advantages from another's property.” Id. at

973 (quoting Morissette, 342 U.S. at 271). The Circuit

offered no constraint whatsoever, holding “Section

641 prohibits both permanent and temporary

takings.” Id.

REASONS WHY CERTIORARI SHOULD BE

GRANTED

WHERE PETITIONERS WERE ACCUSED OF

CONSPIRACY TO DEPRIVE VINCENZO

PELLIGATTI OF HIS PROPERTY RIGHT TO

DUE PROCESS, 18 U.S.C. 241, WHERE MR.

PELLIGATTI DID NOT EXIST AND BY COURT

AUTHORIZED SEARCH HE HAD NO LEGAL

INTEREST TO KEEP “HIS” MONEY, DID THE

TRIAL COURT'S REFUSAL TO DEFINE “DUE

PROCESS’ AND THAT AN INDIVIDUAL IS

NOT DEPRIVED OF IT IF HE HAS

AVAILABLE A POST-DEPRIVATION REMEDY

CONSISTENT WITH PARRATT AND HUDSON,

DENY PETITIONERS THEIR OWN DUE

PROCESS RIGHT TO A FAIR TRIAL?

There can be no conspiracy to deprive a

“person” who doesn’t exist, of a constitutional right

that he doesn’t have.

“Conspiracy is an inchoate crime, the essence

of which is an agreement to commit an unlawful act.”

lanelli v. United States, 420 U.S. 770, 777 (1995).

The agreement to commit the unlawful act is “a

distinct evil,” whether or not “the substantive crime

ensues.” Salinas. v. United States, 522 U.S. 52, 65

(1997). See also United States v. Feola, 420 U.S. 671,

694 (1975) (a conspiracy can be proven “regardless of

whether the crime agreed upon actually is

committed.”).

The right to due process is only triggered,

though, if there 1s at stake a “protected interest.”

Davidson v. Cannon, 474 U_S. 344, 348 (1986). The

money inside the Kelly Inn belonged to the

government before Petitioners could conspire to take

it. Sec. 241 protects a “person” not a phantom, and

Pelligatti’s “right” to keep the money was

extinguished by the Court authorized warrant.

Who owned the Kelly Inn drug money is not in

doubt. For example, in Caplin & Drysdale, Chartered

v. United States, 491 U.S. 617 (1989), this Court held

that

In [21 U.S.C. § 853 (c), the civil-forfeiture

counterpart to § 881], the so-called “relation-

back provision”, Congress dictated that “[a]Jll

right, title and interest in property” obtained

by criminals via the illicit means described in

the statute “vests in the United States upon

commission of the act giving rise to the

forfeiture.” [citation omitted] . . . [T]he “taint

theory,” is one that “has long been recognized

in forfeiture cases.”

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In sum, § 853 (c) reflects the application of the

long-recognized and lawful practice of vesting

title to any forfeitable assets, in the United

States, at the time of the criminal act giving

rise to forfeiture.

Id. at 627.

Following Caplin’s logic, there can be no

deprivation of a “right” to keep money tainted by

drugs. That money is the government's.

Failing to cite Caplin and its progeny, the

Eighth Circuit nonetheless disagreed. “Even if

defendants believed the money was forfeitable,

agreeing to convert it to personal use, rather than

following forfeiture procedures, is sufficient for

conviction under 18 U.S.C. Sec. 241.” Rehak, 589 F.3d

at 971. The Circuit’s decision omits mention,

however, that the Minnesota statutory procedures

were followed; the money taken in both seizures was

properly forfeited. (T. 689, 735).

Instead the Circuit cited United States v.

McClean, 528 F.2d 1250 (2nd Cir. 1976). McClean

featured New York City narcotics officers who shook

down drug dealers, keeping their money and never

subjecting the same to a forfeiture proceeding. Id. at

1252-53. The jury in McClean convicted not on a Sec.

241 theory, rather the general 18 U.S.C. 371 charge.

Id. at 1255. As noted, the Minnesota forfeiture laws

were followed. And unlike here, McClean featured

police officers who ignored the Fourth Amendment's

warrant requirement, simply invaded private homes

and robbed the occupants. Id. at 1253. They were not

heard on the telephone, as was Officer Rehak,

describing how all the money was accounted for. (T.

792).

Though argued, the Eighth Circuit also made

no effort to distinguish or discuss Justice Breyer’s

opinion in United States v. Maravilla, 907 F.2d 216

(1st Cir. 1990), requiring a real person, i.e., the

“inhabitant” described in the companion statute, 18

U.S.C. 242 (1990), to be the object of a civil rights

deprivation. The victim in Maravilla was a

Dominican male who didn’t live in the United States,

i.e, he was not an “inhabitant” as defined. He was

deprived of due process by United States Customs

officials but did not qualify for protection under the

statute. Id. at 223-228. The same holding appears in

United States v. Gaggi, 811 F.2d 47, 58 (2nd Cir.),

cert. denied, 482 U.S. 929 (1987).

The case law interpreting Sec. 241 speaks of the

Statute’s protection of the “citizen,” the “person,” the

“individual.” See generally Wilkins v. United States,

376 F.2d 552, 560 (5th Cir.), cert. denied, 389 U.S.

964 (1967) (summarizing). The government conceded,

through Arvin, that Pelligatti had left the hotel room,

wasn't coming back and had abandoned his property.

Thus no standing could ever be established to contest

the seizure. Abel v. United States, 362 U.S. 217, 241

(1960). Without a recognized right, no Fourth

Amendment protection is available. Hudson _ v.

Michigan, 547 U.S. 586, 591 (2006).

Petitioners were clothed in good-faith, a

doctrine that in practical effect forgives police error in

favor of upholding the search by Court order. See

United States v. Leon, 468 U.S. 897, 914-15 (1984).

Petitioners seized what the warrant directed and

acted within its scope. Id. at 920. The subsequent

changes to the inventory return — correcting the

amount taken — is a record keeping error at best, the

kind of error that does not a Constitutional violation

make. Herring v. United States, 129 S.Ct. 695, 703

(2009).

In the civil law setting, police officers who

search pursuant to a warrant are given qualified

immunity. Pearson v. Callahan, 129 S.Ct. 808, 821-22

(2009). Here they are in prison.

There is no Sec. 241 case that holds Mr.

Pelligatti’s non-existent right to “due process” comes

to life by way of tautology. To say Mr. Pelligatti has

been denied due process doesn’t mean that he was.

The District Court’s instructions left the

concept of due process open for the jury to define,

wrongly so. The due process property right has been

explained in Parratt v. Taylor, 451 U.S. 527 (1980),

Daniels v. Williams, 474 U.S. 327, 329 (1986) and

Hudson v. Palmer, 468 U.S. 517 (1983). In Parratt

Justice Rehnquist emphasized that not every taking

is a due process violation. 451 U.S. at 508.

It seems to us that there is an important

difference between a challenge to an

established state procedure as lacking in due

process and a property damage claim arising

out of the misconduct of state officers. In the

former situation the facts satisfy the most

literal reading of the Fourteenth Amendment’s

prohibition against ‘State’ deprivations of

property; in the latter situation, however, even

though there is action ‘under color of state law

sufficient to bring the amendment into play,

the state action is not necessarily complete. .. .

We may reasonably conclude, therefore, that

the existence of an adequate state remedy to

redress property damage inflicted by state

officers avoids the conclusion that there has

been any constitutional deprivation of property

without due process of law within the meaning

of the Fourteenth Amendment.

Id. at 543 (quoting Bonnor v. Coughlin, 517 F.2d

1311, 1319 (7th Cir. 1975), modified en banc, 545

F.2d 565 (1976), cert. denied, 435 U.S. 932 (1978)).

Justice Rehnquist then turned to the “proper

manner” with which to decide due process

deprivation. Id. at 542. Although the inmate plaintiff

“ha[d] been deprived of property under color of state

law, ... [t}here is no contention that the procedures

themselves are inadequate nor is there any

contention that it was practicable for the State to

provide a post-deprivation hearing.” Id. at 543.

To accept respondent’s argument that the

conduct of the state officials in this case

constituted a violation of the Fourteenth

Amendment would almost necessarily result

in turning every alleged injury which may

have been inflicted by a state official acting

under “color of law” into a violation of the

Fourteenth Amendment cognizable under Sec.

1983. It is hard to perceive any logical

stopping place to such a line of reasoning. . . .

We do not think that the drafters of the

Fourteenth Amendment intended the

Amendment to play such a role in our society.

468 U.S. at 544.

In Daniels v. Williams, Justice Rehnquist,

writing for this Court, overruled Parratt but only to

the extent the deprivation challenged had to be more

than from a “lack of due care.” Parratt’s central

holding — that the availability of post-deprivation

remedy predicate will defeat the due process claim —

was affirmed. 474 U.S. at 330.

In Hudson, this Court re-emphasized

... that an authorized intentional deprivation

of property by a state employee does not

constitute a violation of procedural

requirements of the Due Process Clause of the

Fourteenth Amendment if a meaningful post-

deprivation remedy for the loss is available.

For intentional, as for negligent deprivations of

property by state employees, the state’s action

is not complete until and unless it provides or

refuses to provide a suitable post-deprivation

remedy.

Id. at 533.

The District Court’s view of due process was

visceral. Judge Schiltz: “I think it’s quite clear if the

government .. . deprives you of the use of your

property even temporarily, it has deprived you of

—_—

property without due process.” (T. 1271). That is not

what Parrett, Daniels, and Hudson hold. Ignoring

this Court's decisions, the government was left free to

argue about individual “moral corruption” of

undefined means, and Officer Rehak’s free fall from

his oath to uphold “professional standards.” (T. 1281).

The Circuit held that Parratt, Daniels and

Hudson “are inapposite here, where the focus is on

the defendants’ agreement, not the victim's

damages.” Rehak, 589 F.3rd at 972. The government

now joined by the Circuit have accomplished what

Justice Rehnquist cautioned against, i.e., turning a

police slight into a violation of due process despite the

availability of a post-deprivation remedy. Parratt

541 U.S. at 544: Daniels, 474 U.S. at 333; Hudson,

468 U.S. at 533. It’s one thing to focus on the

agreement of a conspiracy, quite another to at least

acknowledge what the statute demands, that the

conspiracy must concern a recognized “right or

privilege [that] is secured to him by the Constitution

or laws of the United States.” 18 U.S.C. 241.

Following Parratt, Daniels and Hudson

Petitioners requested Instruction 54: “... An

intentional taking is not a deprivation of due process,

however, if there is what is called a post-deprivation

remedy available.” Petitioners’ Proposed Instruction

55 imposed the burden upon the government’s to

prove “[tjhere is no post-deprivation remedy available

to the United States to retrieve its money, that is, a

civil law suit.” Petitioners requested, in Proposed

Instruction 58, the jury be told of specific post-

deprivation remedies. “In Minnesota, a private citizen

may sue a State employee in a civil action and allege

a loss caused by that employee,” citing Minn. Stat.

3.736; Parratt, 451 U.S. at 543-44. Mr. Pelligatti’s

supposed claim could have been contested in the

Ramsey County Conciliation Court. Minn. Stat.

609.5314, Subd. 2 (b)(3). (Appendix pgs. A-57 to A-

62.)

Over objection (T. 1267-70, 1276, 1426), and

without a definition that Parratt, Daniels and

Hudson require, the conviction followed. The absence

of a definition of due process “had substantial and

injurious effect or influence in determining the jury’s

verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623

(1993). The government was erroneously relieved of

their burden to prove an “essential element of a

crime.” Francis v. Franklin, 471 U.S. 307, 313 (1985).

The Court’s instructions permitted the conviction of a

“generic” crime, Schad v. Arizona, 501 U-_S. 624, 633

(1991), denying the Petitioners of their own process

due. Stromberg. v. California, 283 U.S. 359, 367-68

(1931); Griffin v. United States, 502 U_S. 46, 53

(1991).

The Eighth Circuit has decided an important

federal question in a way that conflicts with the

decisions of this Court. Rule 10 (c), Rules of the

Supreme Court of the United States.

Il. INTERPRETING THE FEDERAL THEFT

STATUTE, 18 U.S.C. 641, TO PERMIT

CONVICTIONS FOR TEMPORARILY TAKING

MONEY PURSUANT TO WARRANT WHICH IS

FULLY ACCOUNTED FOR IS INCONSISTENT

WITH MORISSETTE V. UNITED STATES AND

UNITED STATES V. LEON

Over objection (T. 1251-52), the District Court

instructed the jury that to “steal” means to “take

something with the intent to deprive the thing’s

owner permanently or temporarily of the rights and

benefits of ownership.” Rehak, 589 F.3d at 973

(emphasis added). That sentence was in turn

modified: “Property can be converted through misuse

or abuse of the property as well as

through it use in an unauthorized manner or to an

unauthorized extent.” District Court Instruction 17.

The terms “extent” or “manner” were left undefined,

however.

Morissette v. United States, 342 U.S. 246

(1952) is well known for the holding that criminal

intent may be inferred in a felony statute even if not

stated. 342 U.S. at 262. Mr. Morissette took expired

shell casings from government property, believing

that they were abandoned. Id. at 248. This Court

ruled Mr. Morissette’s jury should have considered

his intention as an absolute defense, i.e., his thought

that he could remove the property. Id. at 263.

Morrissette’s language is less than certain for

our setting. Again, here is the key sentence.

“Probably every stealing is a conversion, but certainly

not every conversion is stealing.” Id. at 271 (emphasis

added). At the core of Morissette is a dialectic without

an answer. Of when a conversion is actually theft,

and when it is not.

The word “temporary” does not appear in Sec.

641. If there, the term would be narrowly construed

as to not “sweep[] broadly,” Bailey v. United States,

516 U.S. 137, 143-47 (1995), temporal limits resolved

in the favor of lenity. United States v. Santos, 128 S.

Ct. 2020, 2025 (2008); United States v. Begay, 128

S.Ct. 1581, 1585 (2008). The reach of a federal

criminal statute is not meant to be unlimited. E.g.

United States v. Lopez, 514 U.S. 549, 567 (1995).

The Court refused Petitioners’ Morissette

instruction, number 41:

The theory of the government’s case is

that the funds inside the hotel room were

“converted” albeit temporarily. A conversion, in

law, is not necessarily a theft. The distinction

depends upon the intent of the taker. If the

defendant's intent was to deprive permanently,

then the conversion becomes a theft. If the

conversion is limited in time, and lacks a

party's intent to steal permanently, then it is

not a crime.

Petitioners cited United States v. Kemble, 197 F.3d

316, 321 (3rd Cir. 1952) (holding that the defendant's

actual and illicit intent to deprive the owner of the

property was at the heart of conversion, citing

The Circuit has affirmed a result where the

Petitioners do not know, still, at what moment they

committed a crime, and at what minute before they

were innocent. To hold that the taking can be

temporary without defining what temporary means,

Rehak, 589 F.3d at 973, is a circular result, a

spinning of a nebulous word, a random application.

Six hours is the time limit now required to

deliver an indicted arrestee to a Magistrate Judge,

not five or four or three. See Corley v. United States,

129 S.Ct. 1558, 1571 (2009). At least Corely set a

cutoff point.

A temporary conversion may be trivial, while a

permanent one signals a different intent, Kemble,

197 F.3d at 321, an intent to keep the property

“wrongfully.” Morissette, 342 U.S. at 271. By making

sure no money was missing, Petitioners ensured the

integrity of the criminal justice system.

Had a legitimate defendant challenged this

search and seizure (in either the criminal setting or

by civil action), this case would be easily resolved.

The search was pursuant to what the government's

concedes was a valid warrant, the errors ministerial

and excused by good-faith and a lack of standing.

The civil liability 1s nonexistent, barred by qualified

immunity and the existence of a post-deprivation

remedy.

Petitioners “theft” is excused by this Court’s

jurisprudence. The Eighth Circuit has read

Morissette contrary to Leon, Hudson, Herring,

Pearson, and on the cases go. Rule 10 (a), Rules of the

United States Supreme Court.

CONCLUSION

Based upon the foregoing, Petitioners request

their Petition for Writ of Certiorari be granted.

Dated: March 16, 2010

Respectfully submitted,

Paul Engh

Suite 215 U.S. Bank Plaza

220 South Sixth Street

Minneapolis, MN 55402

(612) 252.1100

engh4@aol.com

ATTORNEY FOR PETITIONERS

APPENDIX

Decision of the Eighth Circuit Court of Appeals... A-1

Judgment of Conviction

for Timothy Conrad Rehak........................ A-19

Judgment of Conviction for Mark Paul Naylon.. A-30

Order denying Petitioners’

ED yy) A-41

Order affirming the Report

MEME MOCOMMMBOTRGRIION. .. «2... occ ccccccsccvescovcces A-44

Petitioners Motions to Dismiss Counts 7 and 8.. A-49

Petitioners’ Requested Jury

Instructions 41, 49, 54, 55, 56 and 58.......... A-55

A-l

APPENDIX

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 09-1405

United States of America,

Plaintiff - Appelice,

Timothy Conrad Rehak,

Defendant - Appellant.

No. 09-1406

United States of America,

Plaintiff - Appellee,

Mark Paul Naylon,

Defendant - Appellant.

Appeals from the United States

District Court for the District of Minnesota.

Submitted: November 18, 2009

Filed: December 22, 2009

Before MURPHY, SMITH, and BENTON, Circuit

Judges.

BENTON, Circuit Judge.

After a jury trial in district court,! Timothy

Conrad Rehak and Mark Paul Naylon were convicted

of conspiring to violate civil rights under 18 U.S.C. §

241, and theft of government property under 18

U.S.C. § 641. They appeal. Having jurisdiction under

28 U.S.C. § 1291, this court affirms.

In 2004, Timothy Rehak, a law enforcement

officer, and Mark Naylon, a public information

officer, were working for the Special Investigations

Unit of the Ramsey County Sheriffs Office (RCSO). In

September, the FBI began investigating Rehak for

corruption. On November 3, it conducted an

“integrity test.”

The FBI rented a room at the Kelly Inn under

the (fictitious) name of Vincent Pelligatti, placing

$13,500 in cash in a duffel bag there. The FBI

instructed a cooperating individual to tell Rehak that

a drug trafficker named “Vinnie” had been arrested

in Wisconsin and was trying to recover drugs and

money he left in room 503 at the hotel. Rehak rephed

that he would try to “scarf’ the money and drugs out

of the hotel room.

Rehak called Naylon. At about 1:15 p.m.,

Rehak arrived at the hotel; Naylon arrived a few

minutes later. They asked the front-desk clerk to let

them in to room 503; she refused because they did not

have a search warrant. Rehak and Naylon contacted

' The Honorable Patrick J. Schiltz, United States District J udge

for the District of Minnesota.

A-2

Rolland Martinez, a Special Investigations sergeant,

told him they had received information of narcotics

and cash in the hotel room, and asked him to get a

search warrant. When Sergeant Martinez arrived at

the hotel to investigate, he found Naylon upset with

the desk clerk. After gathering more facts, Sergeant

Martinez left to obtain a state search warrant.

At 3:38 p.m., Rehak, Naylon, and Sergeant

Martinez entered room 503. According to the FBI's

video recording, Sergeant Martinez begins searching

the bathroom while Rehak and Naylon search the

main room. In the dresser, Rehak finds the duffel bag

with the $13,500. While Sergeant Martinez is in the

bathroom, Naylon motions for Rehak to give him

some of the cash. Rehak hands Naylon $6,000, which

he puts in his coat pocket. As Sergeant Martinez

returns to the main room, Rehak purports to begin

searching the bag and pulls out the remaining

$7,500. Sergeant Martinez is unaware that Rehak

had given $6,000 to Naylon. Naylon leaves the hotel

room, goes to the trunk of his vehicle, and then

returns to the room.

As part of the procedure for inventorying

seized property, Sergeant Martinez and Rehak

separately counted the $7,500 remaining in the bag.

During this procedure, neither Rehak nor Naylon told

Sergeant Martinez of the missing $6,000, which was

not included in the count.

At 4:19 p.m., Rehak and Naylon spoke outside

the hotel room; Rehak left in his car. A few minutes

later, a deputy arrived with his drug dog. The deputy

and Naylon entered the hotel room. The dog sniffed

the $7,500. Naylon did not tell the deputy about the

additional $6,000. In his report, the deputy stated

A-3

that $7,500 was seized. Sergeant Martinez completed

a search warrant receipt, reporting only $7,500.

Naylon reviewed the completed (inaccurate) receipt.

A copy of this receipt was left in the hotel room to

indicate what had been seized. As the inventory

officer, Sergeant Martinez took control of the $7,500

and deposited it at the Special Investigations Unit.

After the local officers left the hotel room, FBI agents

entered, confirming that all $13,500 was gone.

That evening, according to Minnesota Bureau

of Criminal Apprehension records, at 5:30 p.m. and

again at 9:45 p.m., law enforcement databases were

searched by RCSO clerks for "Vincent Pelligatti," the

fictitious drug trafficker. No records were found for

him. Sergeant Martinez and the drug-dog deputy

testified at trial that they did not conduct any

database searches for Vincent Pelligatti. The two

warrant clerks who ran the searches could not recall

who requested them.

Hours later, about midnight, Rehak and

Naylon called Sergeant Martinez at home. Naylon

said they had found an additional $6,000 in the hotel

room under the mattress. The next day, Sergeant

Martinez obtained the $6,000 and amended his report

to reflect the full $13,500. Rehak completed a report

that omitted where the $6,000 had been found and

how it had been handled. When Sergeant Martinez

asked him to add these details, Rehak replied he

knew how to write a report and never made the

requested changes.

One month later, the FBI asked the St. Paul

Police Department (SPPD) to obtain the police

reports of the Kelly Inn search. An SPPD supervisor

asked the RCSO for reports from search warrants

A-4

executed at hotels, including the Kelly Inn. After

specifically inquiring about a search warrant in

November at the Kelly Inn, a RCSO records person

said there was no record of the search. The SPPD

supervisor reiterated the request. Rehak called back

that day, saying he had not yet completed the report

of the Kelly Inn search. Later that day, Rehak sent

the report, which lacked the section explaining where

the moncy was found.

Nine months after this first integrity test, the

FBI conducted another test. The cooperating

individual again contacted Rehak, saying that a drug

trafficker had left drugs and money in a vehicle. FBI

agents observed Rehak and Naylon watching the

vehicle, but not entering it that day. Two days later,

at 2:30 p.m., the cooperating individual again

contacted Rehak, saying the vehicle had been moved.

At 3:00 p.m., the FBI observed Naylon conducting

surveillance on the vehicle. At 5:30 p.m., Rehak and

Naylon called in a canine unit to sniff inside the

vehicle; the dog did not alert for drugs.

At 8:40 p.m., Rehak called the cooperating

individual and asked, "Why would anybody store a

substantial amount of dope in a stolen car parked at

a hotel?” The cooperating individual assured Rehak

that drugs and money were there. At 10:00 p.m., with

no other officers present, Rehak and Naylon entered

the vehicle (where the FBI had placed video and

audio recording devices). They found a bag in the

trunk containing cash but no drugs. Immediately

reacting that it was "odd" to find money but no drugs,

Naylon stated, "Another f**kin' setup." Rehak said,

"They're f**kin' probably watchin’ us." They walked a

short distance away from the car, talking briefly.

Returning to the car, they discussed how to report the

A-5

incident and whether to admit they had been in the

car. They called another deputy to tow it. Rehak said

he would write a report for the incident, but he never

did.

Rehak and Naylon were charged with six

counts of honest services wire fraud, in violation of 18

U.S.C. §§ 1343 and 1346; one count of conspiring to

violate civil rights, in violation of 18 U.S.C. § 241; and

one count of theft of government property, in

violation of 18 U.S.C. § 641. The jury acquitted on the

wire fraud counts. It convicted both men of conspiring

to violate civil rights, and theft of government

property. The jury apparently did not believe Rehak's

testimony that their intent was to play a practical

joke on Sergeant Martinez. Instead, the verdicts

adopted the government's theory of the case: Rehak

and Naylon intended to steal the money, but later

changed their minds and decided to return it.

II.

Defendants contend that there is insufficient

evidence to support their convictions for conspiring to

violate civil rights because they did not actually

violate the civil rights of a real person. "In reviewing

the sufficiency of the evidence, 'we view the evidence

in the light most favorable to the government,

resolving evidentiary conflicts in favor of the

government, and accepting all reasonable inferences

drawn from the evidence that support the jury's

verdict.” United States v. Blazek, 431 F.3d 1104,

1107 (8th Cir. 2005), quoting United States v.

Gaona-Lopez, 408 F.3d 500, 504 (8th Cir. 2005).

It is a crime for "two or more persons [to]

conspire to injure, oppress, threaten, or intimidate

A-6

any person ... in the free exercise or enjoyment of

any right or privilege secured to him by the

Constitution or laws of the United States." 18 U.S.C.

§ 241. Rehak and Naylon were convicted based on

their agreement to take Vincent Pelligatti's money in

violation of his due process rights. Defendants argue

that this fictitious person did not have rights, so they

could not have conspired to violate them.

"Factual impossibility occurs when the objective

of the defendant is proscribed by the criminal law but

a circumstance unknown to the actor prevents him

from bringing about that objective." United States v.

Sobrilski, 127 F.3d 669, 674 (8th Cir. 1997).

"Factual impossibility is not a defense to an inchoate

offense' such as conspiracy or attempt." United

States v. Joiner, 418 F.3d 863, 869 (8th Cir. 2005),

quoting United States v. Fleming, 215 F.3d 930,

936 (9th Cir. 2000). "[T]he crime of conspiracy is

complete on the agreement to violate the law

implemented by one or more overt acts, however

innocent such act standing alone may be, and it is not

dependent on the success or failure of the planned

scheme." United States v. Littlefield, 594 F.2d 682,

684 (8th Cir. 1979). See also United States v.

Jannotti, 673 F.2d 578, 591 (3d Cir.) (en banc)

(upholding Hobbs Act conspiracy convictions for

receiving money to influence official conduct from

undercover agents posing as foreign business

executives seeking favorable government action), cert.

denied, 457 U.S. 1106 (1982); United States uv.

Parker, 165 F. Supp. 2d 431, 456 (W.D.N.Y. 2001)

(defendants convicted under 18 U.S.C. § 241 for

corspiring to violate rights of a fictitious drug dealer

who was actually an undercover agent), aff’ d sub

nom. United States v. Ferby, 108 Fed. Appx. 676,

680 (2d Cir. 2004) (unpublished).

In this case, the objective of defendants was to

take the money of a drug trafficker, Vincent

Pelligatti. Their goal, to keep his money as their own,

violates the law. See United States v. McClean, 528

F.2d 1250, 1255 (2d Cir. 1976) (stating that police

officers who convert to private purposes funds

lawfully seized from suspected criminals violate those

criminals’ civil rights). The fact that Pelligatti was

fictitious was unknown to Rehak and Naylon. This

circumstance prevented them from actually violating

a person's due process rights. While it was factually

impossible to violate his rights, defendants were

charged and convicted of conspiring to violate his

rights. The crime was committed upon their

agreement to steal his money. That they were

unsuccessful is irrelevant to their culpability for

conspiring.

The jury heard ample evidence that Rehak and

Naylon conspired to take the money in violation of

Pelligatti's due process rights: (1) a cooperating

individual called Rehak to tell him a drug dealer

named "Vinnie" had left money and drugs in a hotel

room; (2) Rehak told the cooperating individual he

would try to "scarf the money and drugs from the

hotel room; (3) Rehak and Naylon went to the hotel

and tried to gain access without a search warrant,

even though Rehak knew they needed a search

warrant to enter the room; (4) Rehak found the

money and handed $6,000 of it to Naylon, who

pocketed it; (5) they allowed the other officers to

believe only $7,500 was found; (6) Rehak falsified the

search warrant return and his report of the incident;

(7) even after returning the money, Rehak and

A-8

Naylon never told anyone about how or where it was

actually found, or that they were playing a joke on

Sergeant Martinez; and (8) they recognized the

second FBI integrity test as "another setup." The

evidence was sufficient for a reasonable jury to find

that Rehak and Naylon agreed to take Pelligatti's

money in violation of his due process rights.

Iil.

Defendants suggest they did not conspire to

violate Pelligatti’s rights, because if the facts were as

they believed, the money was drug money subject to

forfeiture. Even if defendants believed the money was

forfeitable, agreeing to convert it to personal use,

rather than following forfeiture procedures, is

sufficient for conviction under 18 U.S.C. § 241. See

McClean, 528 F.2d at 1255-56. Alternatively,

defendants argue that they believed Pelligatti

abandoned his money and therefore had no rights to

it. This argument is contrary to the jury's finding

that defendants conspired to steal money from an

“owner.”

Next, Rehak and Naylon claim that they cannot

be convicted unless prior case law gave them "fair

warning” that their conduct violated a federal civil

right. See United States v. Lanier, 520 U.S. 259,

267-68 (1997). Relying on Fourth Amendment search-

and-seizure cases, defendants argue that since they

had a search warrant, the search of the hotel room

and the seizure of the money were lawful, and their

subjective motivations are irrelevant, citing Whren uv.

United States, 517 U.S. 806, 813 (1996). To the

contrary, the indictment here charged a conspiracy to

deprive property without due process of law. In this

case, subjective motivations are relevant to prove the

A-9

intent to deprive property without due process of law

under 18 U.S.C. § 241.

IV.

Defendants also assert that the district court

erred in its instructions to the jury. This court

reviews a district court's jury instructions for an

abuse of discretion. United States v. Turner, 189

F.3d 712, 721 (8th Cir. 1999). "In reviewing

challenges to jury instructions, this Court recognizes

that the district court has wide discretion in

formulating the instructions, and we will affirm if the

entire charge to the jury, when read as a whole, fairly

and adequately contains the law applicable to the

case." Blazek, 431 F.3d at 1109.

Defendants contend the district court erred in

failing to define "due process” for the jury. The court

instructed the jury that defendants must have

reached “an understanding to injure a person in

Minnesota in the enjoyment of his civil rights." The

court further stated that to agree to injure a person

in the enjoyment of his civil nmghts, the defendants

must have agreed to steal "property and thereby

depriv[e] its owner of property without due process of

law." Defendants counter that the jury should have

been instructed that a taking "is not a deprivation of

due process .. . if there is what is called a post-

deprivation remedy available.”

Defendants cite no authority that a criminal

violation under section 241 cannot occur if the state

provides a_post-deprivation remedy. The cases

defendants cite hold that a plaintiff in a section 1983

action cannot recover for the loss of property by state

A-10

employees if the state provides an adequate remedy

for the loss. See Parratt v. Taylor, 451 U.S. 527

(1980), overruled on other grounds by Daniels uv.

Williams, 474 U.S. 327, 329 (1986); Hudson uv.

Palmer, 468 U.S. 517 (1984). These cases are

inapposite here, wher. the focus is on the defendants’

agreement, not the victim's damages. Defendants’

proposed instruction misstates the law.

Defendants also state that the district court

erred in failing to instruct the jury that if it found

that defendants' conduct did not "harm the citizens,"

then there was no_ constitutional violation.

Defendants were charged with conspiracy to violate

civil rights. The government was not required to

prove they succeeded in violating the rights of others.

This proposed instruction would also inaccurately

state the law.

Defendants also argue the district court erred

in its instructions on the theft-ofgovernment-property

charge. The statute provides: "Whoever ... steals . .

or knowingly converts to his use or the use of another

. any... money... of the United States or of any

depastment or agency thereof. . ." shall be guilty of

an offense against the United States. 18 U.S.C. §

641.

The district court instructed the jury that:

The crime of theft of government property

as charged in Count 7 has three essential

elements, which are:

One, the defendant voluntarily,

intentionally, and knowingly stole or converted

A-11

money to his own use or to the use of another;

Two, the defendant acted with the intent

to deprive the owner of the use or benefit of the

money so taken; and

Three, the money belonged to the Untied

States ....

With respect to the first element: To

"steal" means to knowingly take something

with the intent to deprive the thing's owner

permanently or temporarily of the nghts and

benefits of ownership. To "convert" means to

deliberately take or retain something with the

intent to deprive the thing's owner of its use or

benefit either temporarily or permanently.

Property can be converted through misuse or

abuse of the property as well as through its use

in an unauthorized manner or to an

unauthorized extent.

With respect to the second element — that

is, the defendant's intent — the government

need not prove that the defendant knew that

the United States owned the money at the time

of the taking.

kKzkz*

Defendants argue this imstruction is erroneous

in two ways. First, the jury could convict even if it

found that defendants intended only to take the

money temporarily. They proposed the following

instruction:

If the defendant's intent was to deprive

permanently, then the conversion becomes a

A-12

theft. If the conversion is limited in time, and

lacks the party's intent to steal permanently,

then it is not a crime.

This is not the law.

Conversion . . . may be consummated without

any intent to keep and without any wrongful

taking, where the initial possession by the

converter was entirely lawful. Conversion may

include misuse or abuse of property. It may

reach use in an unauthorized manner or to an

unauthorized extent of property placed in one's

custody for limited use.

Morissette v. United States, 342 U.S. 246, 271-72

(1952) (emphasis added).

In Morissette, the Supreme Court recognized

that section 641 intended to fill "the gaps or crevices

on the law on larceny-type offenses." United States

vu. McRee, 7 F.3d 976, 982 (11th Cir. 1993) (en bane),

citing Morissette, 342 U.S. at 271-72, cert. denied

sub nom. Hale v. United States, 511 U.S. 1071

(1994). The statute reaches all instances where "one

may obtain wrongful advantages from another's

property." Morissette, 342 U.S. at 271. Section 641

prohibits both permanent and temporary takings.

See, e.g., McRee, 7 F.3d at 980; United States v.

Howard, 30 F.3d 871, 875 (7th Cir. 1994); United

States v. Sparkman, 112 Fed. Appx. 358, 360 (5th

Cir. 2004) (unpublished) (conviction for theft of

government funds did not require proof defendant

intended to permanently deprive the government of

funds). The district court's instruction fairly stated

the law by including temporary takings.

Finally, Defendants argue that the district

court committed plain error, Fed. R. Crim. P. 52(b), —

by instructing that "the government need not prove

that the defendant knew that the United States

owned the money at the time of the wrongful taking.”

"Under plain error review, ‘there must be (1) error,

(2) that is plain, and (3) that affects substantial

rights.“ United States v. Vincent, 575 F.3d 820,

825 (8th Cir. 2009), quoting United States v. Keller,

413 F.3d 706, 710 (8th Cir. 2005). Here, there was no

error because the government need not allege or

prove that the defendants knew the property was the

property of the United States. See United States v.

Denmon, 483 F.2d 1093, 1095 (8th Cir. 1973).

Defendants contend the Supreme Court's recent

decision in Flores-Figueroa v. United States, 129 S.

Ct. 1886 (2009), effectively overrules Denmon. In

Flores-Figueroa, the Supreme Court interpreted 18

U.S.C. § 1028A:

Whoever, during and in relation to any felony

violation enumerated in_ subsection (c),

knowingly transfers, possesses, or uses, without

lawful authority, a means of identification of

* Defendants cite United States v. May, 625 F.2d 186, 192-93

(8th Cir. 1980), where this court held that a conviction under

section 641 requires a serious violation of the owner's right to

the property. At trial, defendants did not cite May, nor request

an instruction requiring the jury to find a “serious violation.”

Here, there was no plain error because the court's instruction,

following Morissette, required a serious violation by telling the

jury that it must find defendants "acted with the intent to

deprive the owner of the use or benefit of the money so taken."

A-14

another person shall, in addition to the

punishment provided for such felony, be

sentenced to a term of imprisonment of 2 years.

The Court stated that as "a matter of ordinary

English grammar," the word "knowingly" must apply

to "all the subsequently hsted elements of the crime."

Flores-Figueroa, 129 S. Ct. at 1890. Therefore, the

governiment must prove that the defendant knew that

the "means of identification" belonged to “another

person." Id. at 1894.

Defendants would apply this construction to

section 641: to be convicted, they must know the

property they steal is owned by the United States.

The context of section 641 defeats this interpretation.

Courts have consistently held that the government is

not required to prove a defendant knew the property

he stole was owned by the United States because the

United States’ ownership merely provides the basis

for federal jurisdiction. See United States v. Speir,

564 F.2d 934, 938 (10th Cir.), cert. denied, 435 U.S.

927 (1978); United States v. Jermendy, 544 F.2d

640, 641 (2d Cir.), cert. denied, 430 U.S. 909 (1976);

United States v. Crutchley, 502 F.2d 1195, 1201

(3d Cir. 1974); Denmon, 483 F.2d at 1095; United

States v. Smith, 489 F.2d 1330, 1333-34 (7th Cir.),

cert. dented, 416 U.S. 994 (1973); United States v.

Boyd, 446 F.2d 1267, 1274 (5th Cir. 1971); United

States v. Howey, 427 F.2d 1017, 1018 (th Cir.

1970).

The Howey case explains:

It was not an essential part of the common law

larceny-type offense that the thief knew who

owned the property he took; it was enough that

he knew it did not belong to him. The

A-15

legislative history provides no support for an

assumption that Congress intended in section

641 to add to the common law offenses a new

requirement that a thief know who owned the

property he was stealing.

The reason for including the requirement that

the property, in fact, belongs to the

Government was to state the foundation for

federal jurisdiction. A defendant's knowledge of

the jurisdictional fact is irrelevant, as we have

held in many cases interpreting analogous

statutory provisions.

Howey, 427 F.2d at 1018. See also United States v.

Feola, 420 U.S. 671, 676-77 (1975) (holding that

knowledge of the victim's true identity as a federal

officer was unnecessary to an indictment for

conspiracy to assault a federal officer, because the

federal-officer element was jurisdictional); United

States v. Cox, 577 F.3d 833, 838 (7th Cir. 2009) (Gn

prosecution for interstate transportation of a minor

for sexual activity, holding that government was not

required to prove defendant knew that person

transported for sex was not yet 18, stating that

Flores-Figueroa did not apply in this context). The

district court correctly instructed the jury that the

government was not required to prove the defendants

knew the money was owned by the United States. In

sum, the district court's instructions fairly and

adequately stated the law applicable to this case.

Defendants argue the government's indictment,

and the jury's verdicts, are internally contradictory.

They claim it is impossible for them to be guilty of

stealing money that was both Vincent Pelligatti's and

A-16

the government's. As discussed earlier, defendants

were not charged or convicted of stealing Pelligatti's

money. They were charged and _ convicted of

conspiring to do so. By the jury's verdicts, it

concluded Rehak and Naylon believed that Vincent

Pelligatti left drug money in a hotel room, and they

agreed to steal part of it. Unbeknownst to them, the

money belonged to the government. The verdicts are

not internally inconsistent.

VI.

Defendant Rehak objects that the district court

erred in finding he perjured himself at trial and in

applying an adjustment for obstruction of justice at

sentencing. The district court's interpretation of the

Sentencing Guidelines is reviewed de novo while its

factual findings underlying an adjustment for

obstruction of justice are reviewed for clear error and

given great deference. United States v. Brown, 539

F.3d 835, 839 (8th Cir. 2008).

"Under U.S.S.G. § 3C1.1 a defendant is subject

to a two level enhancement if he ‘testifies falsely

under oath in regard to a material matter and does so

willfully rather than out of confusion or mistake."

Id., quoting United States v. Mendoza-Gonzalez,

363 F.3d 788, 796 (8th Cir. 2004). "When a defendant

objects to an obstruction enhancement based on

perjury, the district court must make findings that

the defendant willfully gave false testimony

concerning a material matter in the case." Id.

In applying the enhancement at sentencing,

the court stated:

I do, however, find it more likely than not that

Mr. Rehak perjured himself when he testified

A-17

under oath that he did not intend to steal

money from the Kelly Inn, but that he and Mr.

Naylon were playing a prank on Sergeant

Martinez. This testimony was, in the words of

Comment 2 to Section 3C1.1, "a denial of guilt

under oath that constitutes perjury." I further

find that Mr. Rehak's false testimony related a

material matter and was done willfully rather

than out of confusion, mistake, or faulty

memory. I have already described the basis for

this finding, when I described the basis for my

finding that Mr. Rehak and Mr. Naylon

intended to permanently take the $6,000. I will

‘ therefore apply, over the defense objection, the

two-level enhancement under Section 3C 1.1 for

obstruction of justice.

Rehak cites United States v. Dunnigan, 507

U.S. 87 (1993), arguing that it holds that the

enhancement is precluded when the defendant's

perjury relates to his intent. Rehak misreads

Dunnigan. The Court then stated that the

enhancement is not appropriate merely because a

jury renders a guilty verdict and disbelieved or found

inadequate a defendant's testimony. Dunnigan, 507

U.S. at 95. The Court held that "a district court must

review the evidence and make independent findings

necessary to establish a willful impediment to or

obstruction of justice, or an attempt to do the same.”

Id. The district court made the proper findings in this

case, which were not clearly erroneous.

Vil.

The judgments of the district court are

affirmed.

United States District Court

District of Minnesota

UNITED STATES OF AMERICA

JUDGMENT IN A CRIMINAL CASE

v. Case Number: 08-CR-72(1) (PJS/SRN)

USM Number: 13851-041

Social Security Number: XXX-XX-7100

Date of Birth: 1960

Timothy Conrad Rehak

Paul C. Engh, Kevin J. Short

Defendant's Attorney

THE DEFENDANT:

[j pleaded guilty to count(s): .

{] pleaded nolo contendere to counts(s) which was

accepted by the court .

{X] was found guilty on count(s) 7 and 8 after a

plea of not guilty.

The defendant is adjudicated guilty of these offenses:

i | Offense oe i}

| . | je}

! ; | /o|

Title & Section| Nate of | Ended uj

4 Offense »

| ! t!

Theft of i i |

118 U.S.C. §641 | Government : November 3, 2004: 7

l Funds M oe

Conspiracy to |

18 U.S.C. §241 | Violate Civil | July 2005 8

ee ____| Rights L usemtan

A-19

The defendant is sentenced as provided in

pages 2 through 6 of this judgment. The sentence is

imposed pursuant to the Sentencing Reform Act of

1984.

[X] The defendant has been found not guilty on

counts(s) 1-6. The jury acquitted the

defendant on Counts 1-4 and the Couri on

Counts 5-6.

[ | Count(s) (is)(are) dismissed on the motion of the

United States.

It is ordered that the defendant must notify the

United States attorney for this district within 30 days

of any change of name, residence, or mailing address

until all fines, restitution, costs, and special

assessments imposed by this judgment are fully paid.

If ordered to pay restitution, the defendant must

notify the court and United States attorney of any

material change in economic circumstances.

February 6, 2009

Date of Imposition of Judgment

s/Patrick J. Schiltz

Signature of Judge

PATRICK J. SCHILTZ, United States District Judge

Name & Title of Judge

February 9, 2009

Date

IMPRISONMENT

The defendant is hereby committed to the

custody of the United States Bureau of Prisons to be

imprisoned for a total term of 35 months, on each

of counts 7 and 8, to be served concurrently.

A-20

[X] The court makes the following

recommendations to the Bureau of Prisons:

That the defendant be incarcerated

at the Federal Prison Camp in Duluth or

at another facility where the defendant

will be safe from inmates who might want

to harm him.

[ ] The defendant is remanded to the custody of

the United States Marshal.

[X] The defendant shall surrender to the United

States Marshal for this district.

[X] at Minneapolis, MN on Monday, March

9, 2009 by 10:00 a.m..

[ ] as notified by the United States Marshal.

[] The defendant shall surrender for service of

sentence at the institution designated by the

Bureau of Prisons:

| ] before on.

[ ] as notified by the United States Marshal.

[] as notified by the Probation or Pretrial

Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on to

a __, with a certified copy of this

judgment. 7

United States Marshal

A-21

Deputy United States Marshal

SUPERVISED RELEASE

Upon release from imprisonment, the

defendant shall be on supervised release for a term of

2 years, on each of counts 7 and 8, to run

concurrently.

The defendant must report to the probation office in

the district to which the defendant is released within

72 hours of release from the custody of the Bureau of

Prisons.

The defendant shall not commit another federal,

state or local crime.

The defendant shall not unlawfully possess a

controlled substance. The defendant shall refrain

from any unlawful use of a controlled substance. The

defendant shali submit one drug test within 15 days

of release from imprisonment and at least two

periodic drug tests thereafter, as determined by the

court.

[X] The above drug testing condition is suspended,

based on the court's determination that the

defendant poses a low risk of future substance

abuse. (Check, if applicable.)

[X] The defendant shall not possess a firearm,

ammunition, destructive device, or any other

dangerous weapon. (Check, if applicable.)

[X] The defendant shall cooperate in the collection of

DNA as directed by the probation officer. (Check,

if applicable.)

A-22

[] The defendant shall register with the state sex

offender registration agency in the state where

the defendant resides, works, or is a student, as

directed by the probation officer. (Check, if

applicable.)

[] The defendant shall participate in an approved

program for domestic violence. (Check, if

applicable.)

If this Judgment imposes a fine or restitution, it is a

condition of supervised release that the defendant

pay in accordance with the Schedule of Payments

sheet of this judgment.

The defendant must comply with the standard

conditions that have been adopted by this court as

well as any additional conditions on the attached

page.

STANDARD CONDITIONS OF SUPERVISION

1) the defendant shall not leave the judicial district

without permission of the court or probation

officer;

2) the defendant shall report to the probation officer

and shall submit a truthful and complete written

report within the first five days of each month;

3) the defendant shall answer truthfully all

inquiries by the probation officer and follow the

instructions of the probation officer;

4) the defendant shall support his or her dependants

and meet other family responsibilities;

5) the defendant shall work regularly at a lawful

occupation, unless excused by the probation

A-23

officer for schooling, training, or other acceptable

reasons;

6) the defendant shall notify the probation officer at

least ten days prior to any change in residence or

employment;

7) the defendant shall refrain from excessive use of

alcohol and shall not purchase, possess, use,

distribute, or administer any controlled substance

or any paraphernalia related to any controlled

substances, except as prescribed by a physician;

8) the defendant shall not frequent places where

controlled substances are illegally sold, used,

distributed, or administered;

9) the defendant shall not associate with any

persons engaged in criminal activity and shall not

associate with any person convicted of a felony,

unless granted permission to do so by the

probation officer;

10) the defendant shall permit a probation officer to

visit him or her at any time at home or elsewhere

and shall permit confiscation of any contraband

observed in plain view of the probation officer;

11) the defendant shall notify the probation officer

within seventy-two hours of being arrested or

questioned by a law enforcement officer;

12) the defendant shall not enter into any agreement

to act as an informer or a special agent of a law

enforcement agency without the permission of the

court; and

13) as directed by the probation officer, the

defendant shall notify third parties of risks that

may be occasioned by the defendant's criminal

record or personal history or characteristics and

shall permit the probation officer to make such

notifications and to confirm the defendant's

compliance with such notification requirement.

A-24

SPECIAL CONDITIONS OF SUPERVISION

The defendant shall not commit any crimes,

federal, state, or local.

The defendant shall abide by the standard

conditions of supervised release recommended by

the Sentencing Commission.

The defendant shall refrain from possessing a

firearm, ammunition, destructive device, or other

dangerous weapon.

Within 72 hours of the defendant's release from

the custody of the Bureau of Prisons, the

defendant must report to the probation office in

the district where he is released.

The defendant must not unlawfully use or

unlawfully possess any controlled substance.

Because the Court determines that the defendant

poses a low risk of future substance abuse, the

defendant is not required to undergo mandatory

drug testing.

The defendant shall cooperate in the collection of

DNA as approved by the probation officer and

mandated by 18 U.S.C. §§ 3563(a) and 3583(d).

The probation office is directed to furnish the

defendant a written statement of all of the conditions

of his supervised release.

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary

penalties under the schedule of payments on Sheet 6.

Assessment Fine Restitution

A-25

Totals: $200 $7,500 $O

{] The determination of restitution is deferred until.

An Amended Judgment in a Criminal Case (AO

245C) will be entered after such determination.

{} The defendant shall make restitution (including

community restitution) to the following payees in

the amount listed below.

If the defendant makes a partial payment, each

payee shall receive an approximately

proportioned payment, unless specified otherwise

in the priority order or percentage payment

column below. However, pursuant to 18 U.S.C.

§3664(i), all nonfederal victims must be paid

before the United States is paid.

Name and Address [Total Restitution ‘Priority or '

of Payee fcen** Ordered Percentage:

n/a | : i.

| i |

oe ae ee ee

TOTALS: |: $0.00 -—«$0.00—~0.00%

Payments are to be made to the Clerk, U.S.

District Court, for disbursement to the victim.

{] Restitution amount ordered pursuant to plea

agreement $.

{X] The defendant must pay interest on restitution

and a fine of more than $2,500, unless the

restitution or fine is paid in full before the

fifteenth day after the date of judgment,

pursuant to 18 U.S.C. §3612(f). All of the

A-26

payment options on Sheet 6 may be subject to

penalties for delinquency and default, pursuant

to 18 U.S.C. §3612(g).

{] The court determined that the defendant does not

have the ability to pay interest and it is ordered

that:

[ ] the interest requirement is waived for the

[ ] fine [ ] restitution.

| ] the interest requirement for the:

[| ] fine H restitution is modified as follows:

** Findings for the total amount of losses are

required under Chapters 109A, 110, 110A, and 113A

of Title 18 for offenses committed on or after

September 13, 1994 but before April 23, 1996.

SCHEDULE OF PAYMENTS

Having assessed the defendant's ability to pay,

payment of the total criminal monetary penalties are

due as follows:

A [{X] Lump sum payment of $7,500.00 due in full

before the fifteenth day after the date of judgment.

B [] Payment to begin immediately (may be

combined with [ ] C, [] D, or [] F below); or

C [] Payment in equal (e.g., weekly, monthly,

quarterly) installments of $ over a period of (e.g.

months or years), to commence (e.g. 30 or 60 days)

after the date of this judgment; or

D [] Payment in equal (e.g., weekly, monthly,

quarterly) installments of $ over a period of (e.g.

months or years), to commence (e.g. 30 or 60 days )

A-27

after the release from imprisonment to a term of

supervision; or

E [] Payment during the term of supervised release

will commence within (e.g. 30 or 66 days ) after

release from imprisonment. The court will set the

payment plan based on an assessment of the

defendant's ability to pay at that time; or

F [] Special instructions regarding the payment of

criminal monetary penalties:

Unless the court has expressly ordered otherwise, if

this judgment imposes imprisonment, payment of

criminal monetary penalties is due during the period

of imprisonment. All criminal monetary penalties,

except those payments made through the Federal

Bureau of Prisons' Inmate Financial Responsibility

Program, are to be made to the clerk of court.

The defendant shall receive credit for all payments

previously made toward any criminal monetary

penalties imposed.

[] Joint and Several

Defendant and Co-Defendant Names and Case

Numbers (including defendant number), Total

Amount, Joint and Several Amount, and

corresponding payee, if appropriate:

[ ] The defendant shall pay the cost of

prosecution.

[ | The defendant shall pay the following court

cost(s):

[ ] The defendant shall forfeit the defendant's

interest in the fellowing property to the United

States:

A-28

Payments shall be applied in the following order: (1)

assessment, (2) restitution principal, (3) restitution

interest, (4) fine principal, (5) fine interest, (6)

community restitution, (7)penalties, and (8) costs,

including costs of prosecution and court costs.

A-29

United States District Court

District of Minnesota

UNITED STATES OF AMERICA

JUDGMENT IN A CRIMINAL CASE

Vv. Case Number: 08-CR-72(2) (PJS/SRN)

USM Number: 13850-0041

Social Security Number: XXX-XX-6473

Date of Birth: 1960

Mark Paul Naylon

Paul W. Rogosheske

Defendant's Attorney

THE DEFENDANT:

[] pleaded guilty to count(s): .

[ J pleaded nolo contendere to counts(s) which was

accepted by the court .

[X] was found guilty on count(s) 7 - 8 after a

plea of not guilty.

The defendant is adjudicated guilty of these offenses:

L ___| Offense

_Nature of | —

Title & Section Offense |

fe a

Theft of

18 U.S.C. §641 | Government | November 3, 2004/7

——__—— ——— — ———$ —

| Conspiracy to.

18 U.S.C. §241 |: Violate Civil , July 2005

i Rights ;

}

| Funds

f 4

}

{

A-30

—— 4+—

‘8 i

ici biiananlianah tk candasahenice mmapeaale

The defendant is sentenced as provided in

pages 2 through 6 of this judgment. The sentence is

imposed pursuant to the Sentencing Reform Act of

1984.

[X] The defendant has been found not guilty on

counts(s) 1-6. The jury acquitted the

defendant on Counts 1-4 and the Court on

Counts 5-6.

[ ] Count(s) (is)(are) dismissed on the motion of the

United States.

It is ordered that the defendant must notify the

United States attorney for this district within 30 days

of any change of name, residence, or mailing address

until all fines, restitution, costs, and special

assessments imposed by this judgment are fully paid.

If ordered to pay restitution, the defendant must

notify the court and United States attorney of any

matcrial change in economic circumstances.

February 6, 2009

Date of Imposition of Judgment

s/Patrick J. Schiltz

Signature of Judge

PATRICK J. SCHILTZ, United States District Judge

Name & Title of Judge

February 9, 2009

Date

IMPRISONMENT

The defendant is hereby committed to the

custody of the United States Bureau of Prisons to be

A-31

imprisoned for a total term of 30 months, on each

of counts 7 and 8, to be served concurrently.

[X] The court makes the following

recommendations to the Bureau of Prisons:

That the defendant be incarcerated

at the Federal Prison Camp in Duluth or

at another facility where the defendant

will be safe from inmates who might want

to harm him.

[ ] The defendant is remanded to the custody of

the United States Marshal.

[X] The defendant shall surrender to the United

States Marshal for this district.

[X] at Minneapolis, MN on Monday, March

9, 2009 by 10:00 a.m..

[ ] as notified by the United States Marshal.

[ ] The defendant shall surrender for service of

sentence at the institution designated by the

Bureau of Prisons:

[ ] before on.

[| ] as notified by the United States Marshal.

[] as notified by the Probation or Pretrial

Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on to

a , with a certified copy of this

judgment.

A-32

United States Marshal

Deputy United States Marshal

SUPERVISED RELEASE

Upon release from imprisonment, the

defendant shall be on supervised release for a term of

2 years, on each of counts 7 and 8, to run

concurrently.

The defendant must report to the probation office in

the district to which the defendant ts released within

72 hours of release from the custody of the Bureau of

Prisons.

The defendant shall not commit another federal,

state or local crime.

The defendant shall not unlawfully possess a

controlled substance. The defendant shall refrain

from any unlawful use of a controlled substance. The

defendant shall submit one drug test within 15 days

of release from imprisonment and at least two

periodic drug tests thereafter, as determined by the

court.

[X] The above drug testing condition is suspended,

based on the court's determination that the

defendant poses a low risk of future substance

abuse. (Check, if applicable.)

[X] The defendant shall not possess a firearm,

ammunition, destructive device, or any other

dangcrous weapon. (Check, if applicable.)

A-33

[X] The defendant shall cooperate in the collection of

DNA as directed by the probation officer. (Check,

if applicable.)

[] The defendant shall register with the state sex

offender registration agency in the state where

the defendant resides, works, or 1s a student, as

directed by the probation officer. (Check, if

applicable.)

{] The defendant shall participate in an approved

program for domestic violence. (Check, if

applicable.)

If this Judgment imposes a fine or restitution, it is a

condition of supervised release that the defendant

pay in accordance with the Schedule of Payments

sheet of this judgment.

The defendant must comply with the standard

conditions that have been adopted by this court as

well as any additional conditions on the attached

page.

STANDARD CONDITIONS OF SUPERVISION

1) the defendant shall not leave the judicial district

without permission of the court or probation

officer;

2) the defendant shall report to the probation officer

and shall submit a truthful and complete written

report within the first five days of each month;

3) the defendant shall answer truthfully all

inquiries by the probation officer and follow the

instructions of the probation officer;

4) the defendant shall support his or her dependants

and meet other family responsibilities;

A-34

5) the defendant shall work regularly at a lawful

occupation, unless excused by the probation

officer for schooling, training, or other acceptable

reasons;

6) the defendant shall notify the probation officer at

least ten days prior to any change in residence or

employment;

7) the defendant shall refrain from excessive use of

alcohol and shall not purchase, possess, use,

distribute, or administer any controlled substance

or any paraphernalia related to any controlled

substances, except as prescribed by a physician;

8) the defendant shall not frequent places where

controlled substances are illegally sold, used,

distributed, or administered;

9) the defendant shall not associate with any

persons engaged in criminal activity and shall not

associate with any person convicted of a felony,

unless granted permission to do so by the

probation officer;

10) the defendant shall permit a probation officer to

visit him or her at any time at home or elsewhere

and shall permit confiscation of any contraband

observed in plain view of the probation officer;

11) the defendant shall notify the probation officer

within seventy-two hours of being arrested or

questioned by a law enforcement officer;

12) the defendant shall not enter into any agreement

to act as an informer or a special agent of a law

enforcement agency without the permission of the

court; and

13) as directed by the probation officer, the

defendant shall notify third parties of risks that

may be occasioned by the defendant's criminal

record or personal history or characteristics and

shall permit the probation officer to make such

A-35

notifications and to confirm the defendant's

compliance with such notification requirement.

SPECIAL CONDITIONS OF SUPERVISION

a The defendant shall not commit any crimes,

federal, state, or local.

b The defendant shall abide by the standard

conditions of supervised release recommended by

the Sentencing Commission.

c The defendant shall refrain from possessing a

firearm, ammunition, destructive device, or other

dangerous weapon.

d Within 72 hours of the defendant's release from

the custody of the Bureau of Prisons, the

defendant must report to the probation office in

the district where he is released.

e The defendant must not unlawfully use or

unlawfully possess any controlled substance.

f Because the Court determines that the defendant

poses a low risk of future substance abuse, the

defendant is not required to undergo mandatory

drug testing.

g The defendant shall cooperate in the collection of

DNA as approved by the probation officer and

mandated by 18 U.S.C. §§ 3563(a) and 3583(d).

The probation office is directed to furnish the

defendant a written statement of all of the conditions

of his supervised release.

A-36

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary

‘Name and Address Total

penalties under the schedule of payments on

Sheet 6.

Assessment Fine Restitution

Totals: $200 $7,500 $0

The determination of restitution is deferred until.

An Amended Judgment in a Criminal Case (AO

245C) will be entered after such determination.

The defendant shall make restitution (including

community restitution) to the following payees in

the amount listed below.

If the defendant makes a partial payment, each

payee shall receive an approximately

proportioned payment, unless specified otherwise

in the priority order or percentage payment

column below. However, pursuant to 18 U.S.C.

§3664(i), all nonfederal victims must be paid

before the United States is paid.

Restitution Priority or .

i kk

oe Payee Loss Ordered Percentage:

Yo a i ;

| TOTALS: | $0.00 $0.00 0.00%

Payments are to be made to the Clerk, U.S.

District Court, for disbursement to the victim.

Restitution amount ordered pursuant to plea

agreement §.

A-37

[X] The defendant must pay interest on restitution

and a fine of more than $2,500, unless the

restitution or fine is paid in full before the

fifteenth day after the date of judgment,

pursuant to 18 U.S.C. §3612(f). All of the

payment options on Sheet 6 may be subject to

penalties for delinquency and default, pursuant

to 18 U.S.C. §3612(g).

The court determined that the defendant does not

have the ability to pay interest and it is ordered

that:

[ ] the interest requirement is waived for the

[ ] fine [ ] restitution.

[ ] the interest requirement for the:

[ ] fine H restitution is modified as follows:

** Findings for the total amount of losses are

required under Chapters 109A, 110, 110A, and 113A

of Title 18 for offenses committed on or after

September 13, 1994 but before April 23, 1996.

SCHEDULE OF PAYMENTS

Having assessed the defendant's ability to pay,

payment of the total criminal monetary penalties are

due as follows:

A [X] Lump sum payment of $7,500.00 due in full

before the fifteenth day after the date of judgment.

B [] Payment to begin immediately (may be

combined with [] C, [] D, or [] F below); or

C [] Payment in equal (e.g., weekly, monthly,

quarterly) installments of $ over a period of (e.g.

months or years), to commence (e.g. 30 or 60 days)

after the date of this judgment; or

D [] Payment in equal (e.g., weekly, monthly,

quarterly) installments of $ over a period of (e.g.

months or years), to commence (e.g. 30 or 60 days )

after the release from imprisonment to a term of

supervision; or

E [] Payment during the term of supervised release

will commence within (e.g. 30 or 60 days ) after

release from imprisonment. The court will set the

payment plan based on an assessment of the

defendant's ability to pay at that time; or

F [] Special instructions regarding the payment of

criminal monetary penalties:

Unless the court has expressly ordered otherwise, if

this judgment imposes imprisonment, payment of

criminal monetary penalties is due during the period

of imprisonment. All criminal monetary penalties,

except those payments made through the Federal

Bureau of Prisons' Inmate Financial Responsibility

Program, are to be made to the clerk of court.

The defendant shall receive credit for all payments

previously made toward any criminal monetary

penalties imposed.

[ ] Joint and Several

Defendant and Co-Defendant Names and Case

Numbers (including defendant number), Total

Amount, Joint and Several Amount, and

corresponding payee, if appropriate:

[ ] The defendant shall pay the cost of

prosecution.

[ ] The defendant shall pay the following court

cost(s):

A-39

[J The defendant shall forfeit the defendant's

interest in the following property to the United

States:

Payments shall be applied in the following order: (1)

assessment, (2) restitution principal, (3) restitution

interest, (4) fine principal, (5) fine interest, (6)

community restitution, (7)penalties, and (8) costs,

including costs of prosecution and court costs.

A-40

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

UNITED STATES OF AMERICA,

Plaintiff, Case No. 0:08-CR-0072 (PJS/SRN)

v. ORDER

(1) TIMOTHY CONRAD REHAK and

(2) MARK PAUL NAYLON,

Defendants.

John R. Marti and Joseph T. Dixon, III, UNITED

STATES ATTORNEY'S OFFICE, for plaintiff.

Paul C. Engh, ENGH LAW OFFICE; Kevin J.

Short, SHORT LAW FIRM, for defendant

Timothy Conrad Rehak.

Paul W. Rogosheske, THUET, PUGH,

ROGOSHESKE & ATKINS, LTD., for defendant

Mark Paul Naylon.

This matter 1s before the Court on the renewed

motion of defendant Timothy Conrad Rehak, joined

by defendant Mark Paul Naylon, for judgment of

acquittal or for a new trial. The Court denies the

motion.

Defendants argue that their conviction on Count

7, for theft of government property, cannot stand

because the crime requires a permanent taking of

property. Defendants argue that someone who takes

the property of the federal government does not "steal

[]" that property or "knowingly convert{] [that

property] to his use" for purposes of 18 U.S.C. § 641

— even if he keeps it for days or weeks or months —

as long as he does not intend to keep it permanently.

A-41

The Court has already rejected this argument, which

is contrary to the language of the statute and

which appears to be unsupported by any authority.

Defendants provide no new legal support for their

argument, and thus the Court again rejects it.

Defendants also argue that their conviction on

Count 8, for conspiracy to violate civil rights, cannot

stand because they acted in good faith and did not

intend to permanently deprive anyone of property.

These arguments, too, have already been rejected by

the Court. Defendants also make various objections

to the jury instructions with respect to Count 8 ‘for

instance, that the instructions did not identify an

individual who was deprived of his civil rights).

Defendants have provided the Court no reason to

doubt the correctness of its earlier rulings or of its

jury instructions, and the Court therefore rejects

these challenges to defendants’ convictions.

Defendants raise only one new argument that

merits somewhat extended comment. They contend

that because the jury acquitted them of wire fraud as

charged in Counts 1 through 4, the core of the

government's case crumbled with the acquittal, and

their convictions on Counts 7 and 8 cannot stand.

Counts 7 and 8, however, did not require proof of any

use of the wires. To sustain a conviction under either

Count 7 or Count 8, the government was required to

prove only that the defendants stole the money (or

conspired to steal the money), not why they later

returned the money. In other words, from the jury's

failure to conclude beyond a reasonable doubt that

Rehak or Naylon caused a wire transmission to be

used in connection with their theft of money, it does

not follow that no reasonable jury could conclude

beyond a reasonable doubt that Rehak and Nalyon

A-42

stole government funds (Count 7) or conspired to

deprive a citizen of his civil rights (Count 8). Indeed,

even on defendants’ theory of the case — that they

took the money as a practical joke — the jury could

have found them guilty on at least Count 7, since

even a temporary taking counts as theft under 18

U.S.C. § 641.

Further, the jury heard evidence from other

iaw-enforcement officers (including at least one who

was plainly sympathetic to defendants) that it is

highly implausible that a sworn police officer would

secretly pocket money found during a search and

permit a false search-warrant receipt to be left — in

almost certain violation of state law, as wellasa

number of departmental regulations — merely to

play a practical joke on another police officer. From

that evidence and the rest of the evidence presented

at trial, the jury was entitled to disbelieve

defendants’ story about why they took money during

the hotel-room search and to instead credit the

government's theory of the case —_ that defendants

intended to steal the money but later (for whatever

reason) got cold feet and returned it. Such evidence

supports the conviction on both Count 7 and Count 8.

ORDER

Based on the foregoing and on all of the files,

records, and proceedings herein, ITT IS HEREBY

ORDERED THAT the renewed motion of defendant

Timothy Conrad Rehak for judgment of acquittal or a

new trial [Docket No. 103], joined by defendant Mark

Paul Naylon [Docket No. 107], is DENIED.

Dated: November 26, 2008 s/Patrick J. Schiltz

Patrick J. Schiltz

United States District Judge

A-43

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

UNITED STATES OF AMERICA,

Plaintiff, Case No. 0:08-CR-0072 (PJS/SRN)

v. ORDER

(1) TIMOTHY CONRAD REHAK and

(2) MARK PAUL NAYLON,

Defendants.

Joseph T. Dixon, III and John R. Marti, UNITED

STATES ATTORNEY'S OFFICE, for plaintiff.

Kevin J. Short, SHORT LAW FIRM; Paul C.

Engh, ENGH LAW OFFICE; for defendant

Timothy Conrad Rehak.

Paul W. Rogosheske, THUET, PUGH,

ROGOSHESKE & ATKINS, LTD., for defendant

Mark Paul Naylon.

This matter is before the Court on the

objections of defendants Timothy Conrad Rehak and

Mark Paul Naylon to the June 5, 2008 Report and

Recommendation ("R&R") of Magistrate Judge Susan

R. Nelson. Because Judge Nelson had before her one

motion filed by Naylon alone (a motion to suppress

evidence) and several motions filed by Rehak and

joined by Naylon, her R&R was docketed twice, once

with respect to each defendant [Docket Nos. 47 & 48].

The Court heard argument on defendants' objections

on July 10, 2008.

Naylon moves to suppress evidence that police

gathered when they searched a policedepartment-

owned car that was in Naylon's garage. Judge Nelson

recommends denying the motion. Because Naylon has

A-44

not objected to this recommendation, the Court

adopts it and denies the suppression motion.

Rehak moves, in four separate motions, to

dismiss all eight counts of the indictment and to

strike certain portions of the indictment as

surplusage. Naylon joins these motions. Judge

Nelson, in her R&R, recommends denying all four

motions. The Court has reviewed de novo those

portions of the R&R to which Rehak and Naylon

object, as required by 28 U.S.C. § 636(b)(1) and Fed.

R. Crim. P. 59(b)(3), and agrees with Judge Nelson's

reasoning and recommendation. The Court therefore

adopts her R&R and denies the motions.

The Court notes, however, that it is not entirely

clear, under Eighth Circuit law, precisely what

conduct by a defendant can support a prosecution for

honest-services wire fraud under 18 U.S.C. §§ 1343

and 1346. In particular, the Eighth Circuit held in

United States v. Jennings that when a public official

violates a state statute, the violation is sufficient to

support a charge of honest-services wire fraud. 487

F.3d 564, 578 (8th Cir. 2007). But Jennings expressly

declined to say whether such a violation is necessary

to support a charge of honest-services wire fraud. /d.

("[B]lecause we hold that the government presented

evidence sufficient to prove that Jennings violated

Minn. Stat. § 10A.07, we save our discussion of the

limits of § 1346 for a future case."). This lack of

clarity does not warrant dismissing counts 1 to 6 of

the indictment, but it will have to be taken into

account in crafting the jury instructions and verdict

form.

That process may prove to be difficult. At the

July 10 hearing, the Court expressed concern to the

A-45

government about how broadly it had charged this

case. The heart of the government's case is simple

and straightforward: Rehak and Naylon stole some of

the money that they found during the November 3,

2004 search. If the jury accepts this theory, it will

almost surely find that Rehak and Naylon violated

Minn. Stat. § 609.52, and, under Jennings, there is no

question that a violation of Minn. Stat. § 609.52 is

sufficient to support an honest-services wire-fraud

conviction.

But the government has charged a much

broader case. It argues that, even if the jury rejects

its theory and concludes that Rehak and Naylon did

not steal money on November 3, 2004, the jury could

nevertheless convict the defendants of wire fraud

based upon violations of, for example, a rule of

conduct of the St. Paul Police Department requiring

officers to report that they are under investigation, or

a rule of conduct of the Ramsey County Sheriff's

Department requiring deputies not to conduct

themselves in a manner that “adversely affects the

morale or efficiency of the department,” or a

Minnesota statute requiring peace officers to leave a

receipt for items taken during the execution of a

search warrant. Likewise, the government argues

that the jury could convict the defendants for their

actions in connection with a July 14, 2005 search in

which the defendants did not steal anything. In short,

the government has charged this case about as

broadly as possible, apparently hoping to make new

law, or hoping that, if the jury rejects their core

contention, the jury will still convict the defendants

of something.

The government's decision will substantially

prolong this trial and require the Court to ask the

A-46

jury to do a great deal of arguably unnecessary work.

If the Court understands the government's position,

it wants the jury to be asked, with respect to each

defendant, and with respect to each of the six wire-

fraud counts, whether the conduct of the defendant

violated any of a list of state statutes, departmental

rules, or common-law duties. The jury potentially will

have to answer dozens of questions to resolve what

should be a simple case.

At the July 10 hearing, the Court urged the

government to consider narrowing the charges so as

to avoid raising very complicated legal issues and

somewhat troubling equitable considerations. In

response, the government sent a letter to the Court

agreeing that, for purposes of this case only, the jury

may be instructed "that a violation of a state-imposed

duty is necessary to find the defendants guilty of

Counts 1 through 6." Gov't Letter July 16, 2008 at 1.

Unfortunately, though, the government did not

define "state-imposed duty." If "state-imposed duty"

includes the duty to follow departmental rules (as the

government's letter implies) and to act consistently

with common-law fiduciary obligations, then the

government has not narrowed its case at all.

Moreover, the government warns that it "will seek a

superseding indictment next week adding a few

additional state law provisions on point." Jd. Thus,

the government seems to have responded to this

Court's suggestion that it simplify its case by

deciding to add yet more state-law provisions to the

already lengthy list that appears in the indictment.

None of this is directly relevant to the question

of whether Judge Nelson's R&R should be adopted.

But the parties are warned that because the

A-47

government has charged this case very broadly, and

because the government seems unwilling to

meaningfully narrow or simplify the issues, the

parties should be prepared to do substantial legal

research and briefing while in trial and to devote

substantial time to assisting the Court in figuring out

how the jury will be charged and verdict form

drafted.

ORDER

Based on the foregoing and on all of the files,

records, and proceedings herein, the Court

OVERRULES the objections of defendants Rehak and

Naylon and ADOPTS Judge Nelson's R&R [Docket

Nos. 47 & 48]. Accordingly, IT IS HEREBY

ORDERED THAT:

2. Naylon's motion to suppress [Docket No.

34] is DENIED.

2. Rehak's motion to dismiss counts 1-6

{Docket No. 22], joined by Naylon

{Docket No. 35], is DENIED.

3. Rehak's motion to dismiss count 7

[Docket No. 23], joined by Naylon

[Docket No. 35], is DENIED.

4. Rehak's motion to dismiss count 8

[Docket No. 24], joined by Naylon

[Docket No. 35], is DENIED.

5. Rehak's motion to strike surplusage

[Docket No. 25], joined by Naylon

[Docket No. 35], is DENIED.

Dated: July 21, 2008 s/Patrick J. Schiltz

Patrick J. Schiltz

United States District Judge

A-48

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

CR 08-72 (PJS/SRN)

United States of America,

Plaintiff, DEFENDANT'S

vs. MOTION TO

DISMISS COUNT 7

Timothy Conrad Rehak,

Defendant.

The defendant, Timothy Conrad Rehak,

through and by his attorneys, Kevin Short and Paul

Engh, and Rule 12 (b)(3)(B), Fed.R.Crim.P., moves

the Court for an Order dismissing Count 7. Our

grounds are these:

1. Count 7 alleges a theft of government funds,

in violation of 18 U.S.C. 641.

2. The Statute prohibits the purloining,

stealing and converting of government property. It

doesn't speak to a scenario where a defendant takes

into account and returns, reflecting an intent to not

permanently possess.

3. The Government's claim is that the taking

may be temporary, citing dicta from United States v.

Howard, 230 F.3d 871, 876 (7th Cir. 1994). The

Eighth Circuit hasn't reached the issue. Our case law

speaks to a permanent taking. E.g. United States v.

Churder, 387 F.2d. 825 (8th Cir. 1968) (noting no

return intended during theft); United States v. Sun

Bear, 307 F.3d 747, 755 (8th Cir. 2002) (noting that

the auto theft in question featured the defendant's

decision to never return the vehicle).

A-49

The Eighth Circuit's model instruction for 18

U.S.C. 641 does not define theft as temporary. Sec.

6.18.641. Sec. 641. And that the members of the

committee in charge of drafting the instructions

include Judge Ann D. Montgomery and Judge

Richard H. Kyle. Neither has signed off on language

conflating permanent with temporary.

4. The Supreme Court's discussion of theft

connotes the permanent as well. Morissette v. United

States, 342 U_S. 246, 266-67 n. 28 (1952).

4. The rule of lenity, discussed in our Motion to

Dismiss Counts 1-6, precludes the Court from finding

a clear meaning in a criminal statute where there

isn't one.

This motion is based upon the files, records

and proceedings herein, such testimony as may be

presented at the motions hearing, and any briefing

which the Court may require thereafter.

Dated: April 16, 2008

Respectfully submitted,

/s/ Paul Engh |

PAUL ENGH

Suite 215 Pillsbury Center 220

South Sixth Street

Minneapolis, MN 55402

612.252.1100

KEVIN SHOR’

Suite 3260

150 South F’’ch Street

Minneapolis, MN 55402

612.333.90' 6

Attorneys or Officer Rehak

A-50

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

CR 08-72 (PJS/SRN)

United States of America,

Plaintiff, DEFENDANT'S

MOTION TO

VS. DISMISS COUNT 8

Timothy Conrad Rehak,

Defendant.

*@eeeeeeee et &€& & HRS SE ESE EE SE

The defendant, Timothy Conrad Rehak,

through and by his attorneys, Kevin Short and Paul

Engh, in accordance with Rulie 12 (b)(3)(B),

‘ed._R.Crim.P., moves the Court for an Order

dismissing Count 8. Our grounds:

1. This Count alleges that Officer Rehak and

Mr. Naylon, "acting under the color of the laws of the

State of Minnesota” conspired to "injure a person or

persons," by depriving them "of property without due

process...". The accusation has no basis in law.

2. This paradigm is set. An indictment is

ordinarily sufficient if it lists the requisite elements

with a sense of clarity. Rule 7 (c), Fed.R.Crim.P-;

United States v. Fleming, 526 F.2d 191, 192 (8th Cir.

1975).

3. But also axiomatic is that both Officer

Rehak and Mr. Naylon had abundant discretion in

fulfilling their duties. Their actions, under the color

of law, are not to be the subject of "judicial second-

guessing months and years after an arrest or search

is made." Atwater v. City of Lago Vista, 532 U.S. 318,

323 (2002). To that end, Mr. Naylon and Officer

Rehak had the absolute right to seize the money.

A-51

They acted pursuant to warrant, signed by a judge

directing that they do search and take away.

4. Qur complaint is this: the retention of the

cash, for a very short period of time (less than four

hours), is not significant enough to warrant a

constitutional violation. The failure to place an item

on an inventory sheet (this Indictment's central

administrative allegation) is ministerial in nature,

does not run afoul of any Amendment, including the

Fourth. United States v. Hepperle, 810 F.2d 836, 839

(8th Cir. 1987); United States v. Williamson, 439

F.3d 1125, 1131 (9th Cir. 2006).

5. The law has always been tolerant of delay

in the Constitutional context, especially when police

officers are involved. Under Fifth Amendment

jurisprudence, for example, a police officer is

permitted to in effect hold a suspect in his house for

seven hours, and the same is not considered

custodial. See United States v. Czichray, 378 F.3d

822, 826 (8th Cir. 2004), cert. denied, 544 U.S. 1060

(2005).

Simularly, delays in bringing a defendant to

Court after he has been charged are routinely

excused. E.g. United States v. Pugh, 25 F.3d 669, 674

(8th Cir. 1994)(six-hour delay harmless). The due

process right of presentment, dating back to McNabb

v. United States, 318 U.S. 332, 347 (1943) and

Mallory v. United States, 354 U.S. 449, 353 (1957)

has been eviscerated.

Government agents are permitted to re-

interview a defendant who exercises his right of

silence, the passing of time not a predicate for Fifth

Amendment claim. Michigan yv. Mosely, 423. U.S. 96,

102-104 (1975); Jackson v. Dugger, 837 F.2d 1469,

147172 (11th Cir. 1988)(six hour time lapse between

A-52

the time the defendant asserted his privilege and the

re-approach by law enforcement permitted).

Failure to afford a defendant a speedy trial,

caused by governmental delay, merely results in

recharging, starting the case anew. E.g. United

States v. Meyer, 609 F.2d 1247, 1251 (8th Cir. 1990).

6. All of these cases say a short time passing

does not make for a Constitutional violation. It

follows that the keeping of money for a couple of

hours is not a deprivation of due process, either. This

is so because a supposed civil rights violation does not

confer a remedy unless the harm is completed and

permanent. In the excessive use of force context, for

example, the harm can't be a fading bruise, a slight of

hand. Bones broken are the pre-requisites. E.g.

Crumley v. City of St. Paul, 324 F.3rd 1003, 1007

(8th Cir. 2003)(no constitutional tort for temporary

harm, hurt feelings, a sense of unfairness); Curd

v. City Court, 141 F.3d 839, 841 (8th Cir. 1998)

(same). The temporal is not the permanent.

7. The Indictment claims a specific intent,

forgetting that subjective motivations of the seizing

officers are irrelevant in the Fourth Amendment

setting. Brigham City, Utah v. Stuart, 547 U.S. 398

(2006). Even assuming, arguendo, Officer Rehak and

Mr. Naylon had improper motives, that isn't the

question to be decided. Id.; Whren v. United States,

517 US. 806, 813 (1996).

In any event our position is that the $6,000.00

was taken as a prank, a joke, a defense that has

never been rebutted by the Government, and indeed

cannot be. The discovery is silent to the contrary, and

silence is not proof.

8. The Government will claim prematurity.

This motion ought not be one reserved for the

vagaries of trial, the parties left to argue about the

A-53

thought process, Freud say, or Canetti's theory of

crowds and power. The taking was permitted

pursuant to warrant, and the later (and accurate)

accounting of the money does not give rise to a

Constitutional violation. End of case.

This Motion is based upon the files, records

and proceedings herein, such testimony as may be

presented at the motion hearing, and any briefing

which the Court may require thereafter.

Dated: April 16, 2008

Respectfully submitted,

/s/ Paul Engh

PAUL ENGH

Suite 215 Pillsbury Center

220 South Sixth Street

Minneapolis, MN 55402

612.252.1100

KEVIN SHORT

Suite 3260

150 South Fifth Street

Minneapolis, MN 55402

612.333.9006

Counsel for Officer Rehak

A-54

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

CR 08-72 (PJS/SRN)

‘United States of America, .

7 Plaintiff, . DEFENDANT

i NAYLON'S MOTION

| TO JOIN

| VS.

‘Mark Naylon,

Defendant.

— F eames ——

The defendant, Mark Naylon, through and by

his attorney, Paul W. Rogosheske, moves to join in all

motions made by the co-defendant, Timothy Rehak,

and his attorneys, Kevin Short and Paul Engh, due to

a joint endeavor and corroboration in bringing said

motions and to avoid duplication for the Court. We

therefore join in the following motions made by

Defendant Rehak:

1. Defendant's Motion to Disqualify the

United States Attorney;

2. Defendant's Motion to Dismiss Counts 1

Through 6;

Defendant's Motion to Dismiss Count 7;

Defendant's Motion to Dismiss Count 8;

Defendant's Motion to Strike Surplusage;

Defendant's Motion for Bill of Particulars;

=f S &

Defendant's Motion for Pretrial Disclosure

of Informants and Their Contracts and

Agreements;

A-55

8. Motion for Discovery and Inspection;

9. Motion to Compel Attorney for the

Government to Disclose Evidence

Favorable to the Defendant;

10. Defendant's Motion for Disclosure of 404(b)

Evidence;

11. Defendant's Motion for Government

Agents to Retain Rough Notes; and

12. Defendant's Motion to Continue Trial

Date.

Defendant Naylon brings the separate Motion

to Suppress Search and Seizure.

Dated: April 16, 2008 Respectfully submitted,

THUET, PUGH, ROGOSHESKE

& ATKINS, LTD.

By: _/s/

Paul W. Rogosheske

(MN #92861)

(Federal #51171)

Attorneys for Defendant

Naylon

222 Grand Avenue West,

Suite 100

South St. Paul, MN 55075

(651) 451-6411

A-56

DEFENDANT'S REQUESTED INSTRUCTION 41

The Distinction Between Conversion and Theft

The theory of the government's case is that the

funds inside the hotel room were "converted" albeit

temporarily. A conversion, in law, is not necessarily a

theft. The distinction depends upon the intent of the

taker. If the defendant's intent was to deprive

permanently, then the conversion becomes a theft. If

the conversion is limited in time, and lacks a party's

intent to steal permanently, then it is not a crime.

United States v. Morrissette, 342 U.S. 246, 271

(1952); United States v. Kemble, 197 F.3d 316, 321

(3rd Cir. 1952)(holding the defendant's actual and

illicit intent to deprive the owner of the property is

the heart of conversion, citing Morrissette)

A-57

DEFENDANT'S REQUESTED INSTRUCTION 49

Elements of Theft of Government funds

The crime of theft of government property has

three essential elements:

1. The defendant voluntarily, intentionally and

knowingly stole money for his own use or use of

another;

2. The money belong to the United States and

had a value in excess of one thousand dollars

($1,000.00); and

3. The defendant did so with intent to

permanently deprive the owner of the use or benefit

of the money;

It is not necessary to prove that the defendant

knew that the government owned the money at the

time of the theft.

If you have a reasonable doubt as to any of the

three elements, you must find the defendant not

guilty.

Eighth Circuit Model Instructions, Sec.

6.18.641(citing Crabb v. Zerbst, 99 F.2d 562 (5th Cir.

1938) and Morissette v. United States, 342 U.S. 246,

267-69 n. 28 (1952))(modified)

A-58

DEFENDANT'S REQUESTED INSTRUCTION 54

Taking of Property without Due Process Defined

The Constitution of the United States prohibits

the taking of property without due process of law by

virtue of state action. The taking must be intentional

and with the further intent that the property not be

returned. The taking cannot be negligent. An

intentional taking is not a deprivation of due process,

however, if there is what is called a post-deprivation

remedy available.

Hudson v. Palmer, 468 U.S. 517, 533 (1984)

A-59

DEFENDANT'S REQUESTED INSTRUCTION 55

Deprivation of Property Without Due Process

Elements

The elements of taking property without due

process are these:

1. The Defendant stole the property, here the

money.

2. The defendant was acting under the color of

state law.

3. The defendant acted intentionally and

wilfully, knowing that his conduct violated the law.

4. The defendant did not act negligently.

5. There is no post-deprivation remedy

available to the United States to retrieve its money,

that 1s, a civil law suit.

Hudson v. Palmer, 468 U.S. 517, 533 (1984)(imposing

the requirement that no alternative or remedy for the

taking be available in law); United States v. Jackson,

235 F.2d 925, 927 (8th Cir. 1956)(setting out the

elements); O'Malley et al, Federal Practice and

Instruction, Sec. 29.03 (modified).

A-60

DEFENDANT'S REQUESTED INSTRUCTION 56

Constitutional Violation Defined by the Permanent,

not the Temporal

The question that the jury must consider is

whether or not the taking alleged deprived the

citizens due process, i.e., whether a four hour time

frame — between the moment the $6,000.00 was

taken and then inventoried — constitutes a denial of

due process. If you find that the delay here did not

harm the citizens, that is to say prejudice them when

it occurred beyond a reasonable doubt, then there is

no constitutional violation proven.

See e.g. United States v. Pugh, 25 F.3d 669, 674 (8th

Cir. 1994)(six-hour delay in presenting the defendant

considered harmless); United States v. Czichray, 378

F.3d 822, 826 (8th Cir. 2004)(holding a defendant for

seven hours in his house not a constitutional

violation, when he was free to leave thereafter);

United States v. Meyer, 609 F.2d 1247, 1251 (8th

Cir. 1990)(failure to afford defendant a speedy trial is

remedied by starting over, especially with in absence

of prejudice)

A-61

DEFENDANT'S REQUESTED INSTRUCTION 58

Available Remedies in State Law

One of the elements for your consideration is

the requirement that there are no alternative

remedies available to the aggrieved party. In

Minnesota, a private citizen may sue a State

employee in a civil action and allege a loss caused by

that employee.

Minn. Stat. 3.736; Parratt v. Taylor, 451 U.S. 527,

543-44 (1980)

A-62

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.