                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

       No. 09-1405
      ___________

United States of America,              *
                                       *
           Plaintiff - Appellee,       *
                                       *
v.                                     *
                                       *
Timothy Conrad Rehak,                  *
                                       *
           Defendant - Appellant.      *
      ___________
                                           Appeals from the United States
       No. 09-1406                         District Court for the
      ___________                          District of Minnesota.

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      *
v.                                    *
                                      *
Mark Paul Naylon,                     *
                                      *
           Defendant - Appellant.     *
                                 ___________

                             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,1 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.

                                          I.

       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 Sheriff’s 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 replied 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 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



      1
       The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.

                                         -2-
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 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.




                                          -3-
       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 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 money 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

                                         -4-
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 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

                                          -5-
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 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 v. Parker, 165 F. Supp. 2d 431, 456 (W.D.N.Y.
2001) (defendants convicted under 18 U.S.C. § 241 for conspiring 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).

                                           -6-
       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 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.

                                          III.

        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.

                                          -7-
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 v. 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 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.




                                            -8-
                                            A.

       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
rights, 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
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 v. Williams, 474
U.S. 327, 329 (1986); Hudson v. Palmer, 468 U.S. 517 (1984). These cases are
inapposite here, where 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.

                                            B.

      Defendants also argue the district court erred in its instructions on the theft-of-
government-property charge. The statute provides: “Whoever . . . steals . . . or

                                           -9-
knowingly converts to his use or the use of another . . . any . . . money . . . of the
United States or of any department 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 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 rights 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.
      ...

      Defendants argue this instruction 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:




                                          -10-
      If the defendant’s intent was to deprive permanently, then the conversion
      becomes a 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 v. McRee,
7 F.3d 976, 982 (11th Cir. 1993) (en banc), 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.2




      2
         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.”

                                          -11-
       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 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 listed elements of the crime.”
Flores-Figueroa, 129 S. Ct. at 1890. Therefore, the government 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

                                         -12-
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. denied, 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 (9th 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 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) (in 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



                                        -13-
States. In sum, the district court’s instructions fairly and adequately stated the law
applicable to this case.

                                          V.

       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 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.

                                         -14-
      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 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
      3C1.1 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.

                                         VII.

      The judgments of the district court are affirmed.




                                         -15-
