U.S. v. Rehak
| Decision Date | 22 December 2009 |
| Docket Number | No. 09-1405.,No. 09-1406.,09-1405.,09-1406. |
| Citation | 589 F.3d 965 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Timothy Conrad REHAK, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Mark Paul Naylon, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Paul C. Engh, argued, Minneapolis, MN, Kevin J. Short, on the brief, Minneapolis MN, Paul W. Rogosheske, on the brief, St. Paul, MN, for appellants.
Joseph T. Dixon, III, AUSA, argued, John Marti, AUSA, on the brief, Minneapolis, MN, for appellee.
Before MURPHY, SMITH, and BENTON, Circuit Judges.
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.
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 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.
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 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.
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 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) (...
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