956 F.2d 197 (9th Cir. 1992), 91-30157, United States v. Johnson

Docket Nº:91-30157.
Citation:956 F.2d 197
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Dale Leroy JOHNSON, Defendant-Appellant.
Case Date:January 31, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 197

956 F.2d 197 (9th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,


Dale Leroy JOHNSON, Defendant-Appellant.

No. 91-30157.

United States Court of Appeals, Ninth Circuit

January 31, 1992

Submitted Jan. 9, 1992.[*]

Page 198

Brian L. Delaney, Mulroney, Delaney & Scott, Missoula, Mont., for defendant-appellant.

Kris A. McLean, Asst. U.S. Atty., Helena, Mont., for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before WRIGHT, NORRIS and HALL, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Dale Leroy Johnson appeals from the judgment on a jury verdict convicting him of removing topsoil from a tract of land mortgaged to the Secretary of Agriculture in violation of 18 U.S.C. § 658. Section 658 provides:

Whoever, with intent to defraud, knowingly conceals, removes, disposes of, or converts to his own use or to that of another, any property mortgaged or pledged to, or held by ... the Secretary of Agriculture acting through the Farmers' Home Administration ... shall be fined not more than $5,000 or imprisoned not more than five years, or both; but if the value of such property does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.

Page 199

Johnson was sentenced to 120 days of home confinement and 300 hours of community service. On appeal, he challenges the court's refusal to admit testimony on the value of the land as well as several refused jury instructions, the sufficiency of the evidence and the length of his sentence. We affirm.


In 1979, Johnson and his wife signed promissory notes to the Farmers' Home Administration (FmHA) totalling approximately $270,000. Johnson gave a mortgage granting the FmHA a security interest in the property at issue. The mortgage contained a number of provisions forbidding the mortgagor from injuring the mortgaged property. 1

In 1984, Johnson's dairy business fell upon hard times. When the dairy failed, he was forced into bankruptcy. In an attempt to remedy his declining financial situation, he developed a scheme to sell topsoil off the land mortgaged to the FmHA. He began to sell the topsoil in 1987, hiring two farm hands, Farrier and Devereaux, to help him remove, sell and deliver all topsoil on the property. Johnson checked their progress frequently and urged them to work rapidly.

Using a front end loader, Farrier filled a dump truck with topsoil. Then, he and Devereaux delivered the topsoil to Johnson's business, where it was stockpiled for later sale and delivery to Missoula area purchasers. Johnson openly...

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