At page 199 Determining government's burden to prove intent to defraud65 citing cases“whether a jury instruction misstates elements of a statutory crime is a question of law reviewed de novo.”
- United States v. James Dalton Bell, 303 F.3d 1187 (9th Cir. 2002).publishedSee Ninth Circuit Manual of Model Criminal Jury Instructions 5.4 (1995); United States v. Johnson, 956 F.2d 197, 199-200 (9th Cir.1992).
- United States v. Lugo, 36 F. App'x 254 (9th Cir. 2002).unpublishedUnited States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir. 2001) (citing United States v. Tobias, 863 F.2d 685, 687 (9th Cir.1988)). “ “Whether a jury instruction misstates elements of a statutory crime is a question of law reviewed…
- United States v. Edward Carranza, 289 F.3d 634 (9th Cir. 2002).published“Whether a jury instruction misstates elements of a statutory crime is a question of law [and] reviewed de novo.” United States v. Romo-Romo, 246 F.3d 1272, 1274 (9th Cir.2001), (citing United *644 States v. Johnson, 956 F.2d 197, 199 (9th…
- United States v. Ivan Garcia-Paz, 282 F.3d 1212 (9th Cir. 2002).publishedUnited States v. Romo-Romo, 246 F.3d 1272, 1274 (9th Cir.2001) (citing United States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992)).
- United States v. Manuel Romo-Romo, 246 F.3d 1272 (9th Cir. 2001).publishedSTANDARD OF REVIEW “Whether a jury instruction misstates elements of a statutory crime is a question of law reviewed de novo.” United States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- 98 Cal. Daily Op. Serv. 5379, 98 Daily Journal D.A.R. 7551 United States of Am. v. Bernard Vincent Montgomery, United States of Am. v. Lloyd Raymond Buxton, 150 F.3d 983 (9th Cir. 1998).publishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992). 84 In United States v. Shabani, 513 U.S. 10 , 115 S.Ct. 382 , 130 L.Ed.2d 225 (1994), the Supreme Court held that "[i]n order to establish a violation of 21 U.S.C. § 846 , the Gov…
- United States v. Reed, 147 F.3d 1178 (9th Cir. 1998).publishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992) (citing United States v. Linn, 880 F.2d 209, 217 (9th Cir.1989)).
- 98 Cal. Daily Op. Serv. 5342, 98 Daily Journal D.A.R. 7493 United States of Am. v. Norman Reed, United States of Am., Plaintiff-Appellant/cross-Appellee v. Norman Reed, Defendant-Appellee/cross-Appellant, 147 F.3d 1178 (9th Cir. 1998).publishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992) (citing United States v. Linn, 880 F.2d 209, 217 (9th Cir.1989)).
- United States v. Montgomery, 150 F.3d 983 (9th Cir. 1998).publishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. David R. Knapp, United States of Am. v. Grk Corp., Dba Knapp Ford Mercury, 120 F.3d 928 (9th Cir. 1997).publishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992) (citation omitted).
Show 55 more citing cases
- United States v. David R. Knapp, United States of Am. v. Grk Corp., Dba Knapp Ford/mercury, 113 F.3d 1015 (9th Cir. 1997).publishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992) (citation omitted).
- United States v. Clayton R. Jackson, 72 F.3d 1370 (9th Cir. 1995).publishedNo. 31 To constitute the crime of offering a bribe, it is not necessary that any particular words or conduct be used, provided that the means of communication used, viewed in the light of the attending circumstances, is such as to clearly…
- United States v. Dae Sik Nam, Aka: Nam Dae Sik Aka: \Nam\"", 61 F.3d 914 (9th Cir. 1995).unpublishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992); United States v. Hayes, 794 F.2d 1348, 1351 (9th Cir.1986), cert. denied, 479 U.S. 1086 (1987). 11 During the course of the trial the district court twice instructed the jury that…
- United States v. David R. Knapp, United States of Am. v. Grk Corp., Dba Knapp Ford/mercury, 52 F.3d 335 (9th Cir. 1995).unpublishedKnapp cites to the recent decision, United States v. Stein, 37 F.3d 1407 (9th Cir.1994), cert. denied, 63 USLW 3628 (Feb. 21, 1995). 48 "Whether a jury instruction misstates elements of a statutory crime is a question of law reviewed de no…
- United States v. Richard Barnes, 46 F.3d 1146 (9th Cir. 1994).unpublishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Gabriel Rene Martinez, 41 F.3d 1514 (9th Cir. 1994).publishedWe do not agree. 30 "Whether a jury instruction misstates elements of a statutory crime is a question of law reviewed de novo." United States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Alex v. Stein, 37 F.3d 1407 (9th Cir. 1994).publishedMoney Laundering Stein argues part of the district court’s instructions to the jury on the money laundering counts were negated by a general instruction on when an act is done “knowingly,” and this relieved the prosecution of its burden to…
- United States v. Sonja Harrison, 34 F.3d 886 (9th Cir. 1994).publishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Byron Jamerson, 35 F.3d 572 (9th Cir. 1994).unpublishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Michael H. Weitzenhoff Thomas W. Mariani, 35 F.3d 1275 (9th Cir. 1994).published United States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Jeffrey S. Welch, 32 F.3d 573 (9th Cir. 1994).unpublishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Garland James Guidry, 29 F.3d 635 (9th Cir. 1994).unpublishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Monty G. Mason, Ii, Richard B. Noyer, Leonardo Radomile, & Lewis Koss, 26 F.3d 134 (9th Cir. 1994).unpublishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992); United States v. Linn, 880 F.2d 209, 217 (9th Cir.1989).
- United States v. Bradley H. Koach, United States of Am. v. Charles E. Colburn, Iii, United States of Am. v. Bradley H. Koach, 21 F.3d 1117 (9th Cir. 1994).unpublishedThus the failure to define "willfulness" is reviewed for plain error, United States v. Powell, 932 F.2d 1337, 1341 (9th Cir.), cert. denied, 112 S.Ct. 256 (1991), and the repetition of "reckless disregard" is reviewed for abuse of discreti…
- United States v. Efrain Oseguera-Haros, 21 F.3d 1118 (9th Cir. 1994).unpublishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Robert W. Guthrie, 17 F.3d 397 (9th Cir. 1994).publishedDecided Feb. 10, 1994. 1 Before: BROWNING, NORRIS, and O'SCANNLAIN, Circuit Judges 2 MEMORANDUM * 3 * "Whether a jury instruction misstates elements of a statutory crime is a question of law and is reviewed de novo." United States v. Johns…
- United States v. Harry Armondo Dorri, 15 F.3d 888 (9th Cir. 1994).published United States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992). 36 Whether Dorri's conduct, if his story be believed, amounts to bribery under section 201 is not obvious.
- United States v. Enrique Cruz-Moreno, 15 F.3d 1091 (9th Cir. 1993).publishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992); United States v. Linn, 880 F.2d 209, 217 (9th Cir.1989).
- United States v. Alfonso Mejia, Raul Jose Campos-Rozo, United States of Am. v. Alfonso Mejia, 17 F.3d 397 (9th Cir. 1993).unpublishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- Ninth Circuit Rule 36-3 Provides That Dispositions Other Than Opinions or Orders Designated for Pub. Are Not Precedential & Should Not Be Cited Except When Relevant Under the Doctrines of Law of the Case, Res Judicata, or Collateral Estoppel. United States of Am. v. Renee Lynn White, AKA Renee Lynn Vickery, United States of Am. v. Robert Vickery, United States of Am. v. Mark Douglas Pirtle, 12 F.3d 1110 (9th Cir. 1993).unpublishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992) (Johnson ).
- Fed. Sec. L. Rep. P 98,013 United States of Am. v. Meyer Blinder, 10 F.3d 1468 (9th Cir. 1993).publishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Julian Salguiero-Duarte, 12 F.3d 1110 (9th Cir. 1993).unpublishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Donald Lake Simpson, United States of Am. v. Rodolfo Molina, Jr., 10 F.3d 645 (9th Cir. 1993).publishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Winston Scott Mesch, United States of Am. v. James A. Hoffman, 12 F.3d 1109 (9th Cir. 1993).unpublishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Regino Armenta-Lopez, 8 F.3d 30 (9th Cir. 1993).unpublishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Basilio Angulo-Lopez, United States of Am. v. Roberto Herrera-Robles, United States of Am. v. Ismael Barron, United States of Am. v. Maria Meras, United States of Am. v. Uriel Castaneda, United States of Am. v. Jose Castaneda, United States of Am. v. Epifanio Gonzalez-Castro, United States of Am. v. Victor Chavez-Castaneda, United States of Am. v. Terezo De Jesus Umansor-Alvarez, United States of Am. v. Lucas Ornelas-Martinez (True Name: Jose Licea), 8 F.3d 30 (9th Cir. 1993).unpublishedWe review the district court's formulation of jury instructions for abuse of discretion, United States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992), but we review de novo whether a jury instruction misstates the elements of a crime.
- United States v. Darryl Freeman, Tyrone Netters, 6 F.3d 586 (9th Cir. 1993).published“Whether a jury instruction misstates the elements of a statutory crime is a question of law reviewed de novo.” United States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Vincenzo Rocco Gianforte, 5 F.3d 541 (9th Cir. 1993).publishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Richard Heuer, United States of Am. v. Eugene Holderness, 4 F.3d 723 (9th Cir. 1993).published United States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Michael H. Weitzenhoff & Thomas W. Mariani, 1 F.3d 1523 (9th Cir. 1993).publishedUnited States v. Johnson, 956 F.2d 197,199 (9th Cir.1992).
- United States v. Reese, 2 F.3d 870 (9th Cir. 1993).publishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Juan Dale Reese, United States of Am. v. Scott Matthew Dwyer, United States of Am. v. Daniel Wayne Broussard, United States of Am. v. Larry Marcel Houston, 2 F.3d 870 (9th Cir. 1993).publishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Dalegor W. Suchecki, 995 F.2d 234 (9th Cir. 1993).unpublished"Whether a jury instruction misstates elements of a statutory crime is a question of law reviewed de novo." United States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Eduardo Perez, 989 F.2d 1111 (9th Cir. 1993).publishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Robert Dale Lloyd, 990 F.2d 1263 (9th Cir. 1993).unpublishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992). 6 No dilemma is posed by the standard of review.
- United States v. Son Anh Chu, 988 F.2d 981 (9th Cir. 1993).publishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Sergio Peral-Cota, United States of Am. v. Moises Barraza-Armenta, 988 F.2d 125 (9th Cir. 1993).unpublishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. David Lee Baldwin, 987 F.2d 1432 (9th Cir. 1993).publishedJURY INSTRUCTIONS Baldwin contends that the district court erred by failing to instruct the jury that proof of an overt act was necessary to convict him of conspiracy to distribute cocaine. *1437 “Whether a jury instruction misstates eleme…
- United States v. James Alan Garrett, 988 F.2d 123 (9th Cir. 1993).unpublishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States of Am., Plaintiff-Appellee-Cross-Appellant v. William Benton Cunningham, Defendant-Appellant-Cross-Appellee, 985 F.2d 575 (9th Cir. 1993).unpublishedUnited States v. Johnson, 956 F.2d 197, 199 (9th Cir.1992).
- United States v. Matthew Edward Lothian, 976 F.2d 1257 (9th Cir. 1992).published
- United States v. Edgar Ryan Witherspoon, 979 F.2d 857 (9th Cir. 1992).unpublished
- United States v. Tonya Denise Drake, 980 F.2d 739 (9th Cir. 1992).unpublished
- United States v. Jovita Guitron-Hernandez, 981 F.2d 1260 (9th Cir. 1992).unpublished
- United States of Am., Cross-Appellant v. Brett Alan Brinton, Cross-Appellee, United States of Am., Cross-Appellant v. William John Brinton, Cross-Appellee, 985 F.2d 575 (9th Cir. 1993).unpublished
- United States of Am., Plaintiff-Appellee/cross-Appellant v. Danny Yellowman, Defendant-Appellant/cross-Appellee, 985 F.2d 577 (9th Cir. 1993).unpublished
- United States v. James Carl Dendy, 995 F.2d 233 (9th Cir. 1993).unpublished
- United States v. Guadalupe Acosta, United States of Am. v. Jesus Mariscales, United States of Am. v. Luis Fierro, United States of Am. v. Manuel Ruiz Alvarez, 5 F.3d 540 (9th Cir. 1993).published
- Keiko Larez, & v. William Holcomb, & Cross-Appellee, 16 F.3d 1513 (9th Cir. 1994).published
- United States v. Ronald Olen Burrows, 36 F.3d 875 (9th Cir. 1994).published
- UNITED STATES of Am., Plaintiff-Appellee, v. Raniel Bonifacio AMPARO, Defendant-Appellant, 68 F.3d 1222 (9th Cir. 1995).published
- United States v. Terrence Henry Hale, 69 F.3d 545 (9th Cir. 1995).unpublished
- United States v. Brian Hile, 626 F. App'x 674 (9th Cir. 2015).unpublished
- United States v. Douglas Farrar, Jr., No. 19-10122 (9th Cir. Jan. 24, 2022).unpublished
- United States v. Brown, 4 F. App'x 420 (9th Cir. 2001).unpublished
v.
Dale Leroy JOHNSON, Defendant-Appellant
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.
[*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.
I
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 advertised the soil for sale.
The FmHA’s local director, Stanley Faught, learned of the sales and investigated. When he inspected the property, he discovered an area he estimated at 350 feet by 450 feet stripped of topsoil. He saw heavy equipment tracks and noted the area was lowered approximately two feet in elevation. He determined that Johnson had indeed sold topsoil in violation of the terms of his mortgage and the statute.
II
Johnson first contends the district court erred in excluding evidence regarding the effect that removal of the topsoil had on the fair market value or the highest and best use of the subject property. We disagree. Under section 658, the government must prove that the defendant, with intent to defraud, knowingly concealed, removed, disposed of, or converted to his own use property worth more than $100 and mortgaged to the FmHA. Whether the removal of the topsoil had any effect on the value of the land and its highest and best use is irrelevant because the effect of the defendant’s action on the value of the property is not an element of the crime. United States v. Benny, 786 F.2d 1410, 1417 & n. 2 (9th Cir.), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986) (approving jury instruction reading “the evidence in the case need not establish that any lender was actually defrauded, but only that the accused acted with intent to defraud.”); Manual of Model Jury Instructions for the Ninth Circuit § 3.15 comment (Supp. 1991). Expert testimony on this issue would have been equally irrelevant. It was not error to exclude it.
III
Johnson contends that it was error to refuse a number of his proposed jury instructions. We review the formulation of jury instructions for abuse of discretion. United States v. Linn, 880 F.2d 209, 217 (9th Cir.1989). Whether a jury instruction misstates elements of a statutory crime is a question of law reviewed de novo. United States v. Spillone, 879 F.2d 514, 525 (9th Cir.1989), cert. denied, — U.S. -, 111 S.Ct. 210, 112 L.Ed.2d 170 (1990).
Johnson argues that it was error to refuse his requested instruction on the specific intent necessary to show a violation of section 658. We discourage the use of generic specific intent instructions and be[*200] lieve district courts should “define the precise mental state required by the particular offense charged as an element of the offense which must be proved beyond a reasonable doubt.” Manual of Model Criminal Jury Instructions for the Ninth Circuit § 5.04 (1989). The court therefore instructed the jury that “[t]o act with ‘intent to defraud’ means to act knowingly and with the intent to deceive or cheat, ordinarily for the purpose of causing a financial loss to another and bringing about a financial gain to one’s self.” The Eighth Circuit approved a virtually identical instruction in United States v. Porter, 842 F.2d 1021, 1026 n. 3 (8th Cir.1988). We agree with that approach and hold that the district court properly instructed the jury regarding the need to find intent to defraud.
Johnson also contends that the court improperly instructed the jury regarding what level of knowledge was necessary to support a finding of intent to defraud. Johnson’s argument is meritless because the district court fully instructed the jury regarding the knowledge element of the crime:
... You are instructed that an act is done “knowingly” if the defendant realized what he or she was doing and did not act through ignorance, mistake, or accident.
... Mere negligence, even gross negligence, is not sufficient to constitute wilfulness under the criminal law.
This instruction was in line with other circuit law and this circuit’s model jury instructions. Porter, 842 F.2d at 1026; Manual at § 5.04 (1989).
Johnson next argues that the district court erred by instructing the jury that the government must prove an intent to cause a loss to another or to bring about a gain to oneself. Johnson argues that the government was required to prove both of those propositions. Although the court initially instructed the jury that it must prove both propositions, changing the instruction was not an abuse of discretion. Moreover, we have approved the disjunctive instruction in our model jury instructions and in the context of a prosecution for mail fraud. Manual of Model Criminal Jury Instructions for the Ninth Circuit § 5.04 (1989); United States v. Seymour, 576 F.2d 1345, 1347-48 (9th Cir.) (holding similar instruction “thoroughly acquainted the jury with the term[ ] ‘intent to defraud.’ ”), cert. denied, 439 U.S. 857, 99 S.Ct. 171, 58 L.Ed.2d 164 (1978). We find the instruction equally appropriate here.
Johnson argues that the court erred when it refused his instruction that to find a violation of section 658, the jury must find that he knew the topsoil itself was mortgaged to the FmHA. He is incorrect. That argument would require the FmHA to draft mortgages of several pages, identifying every possible element comprising each parcel mortgaged. Such specificity in mortgages is undesirable and unjustifiably onerous. FmHA County Supervisor Walk-up and District Director Faught testified that the topsoil was mortgaged property and that the property without topsoil would be less valuable. From this evidence, the court properly refused the instruction, indicating instead to the jury that the mortgage covered all property, including the topsoil.
IV
Johnson’s next argument, that the evidence was insufficient to support his conviction, is also without merit. In reviewing such a claim, we examine the record as a whole and view the evidence in the light most favorable to the government. United States v. Adler, 879 F.2d 491, 495 (9th Cir.1988). We will uphold the conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. Our careful review of the facts convinces us that the evidence of guilt was overwhelming. Johnson knew that he could not harm the mortgaged land. He took the topsoil, sold it, and acknowledged to others that he knew he did not have the right to do so. Sufficient evidence supports the verdict.
V
Johnson contends the district court erred in valuing the loss from his[*201] topsoil sale at $10,000. He challenges his sentence, claiming that the court’s erroneous valuation resulted in an improper increase of four in his offense level. U.S.S.G. § 2B1.1. The district court’s factual findings at sentencing are reviewed for clear error. United States v. Burns, 894 F.2d 334, 336 (9th Cir.1990).
Sufficient evidence supports the court’s topsoil valuation. Farrier, who was responsible for hauling a significant amount of topsoil, testified that he charged customers $10 per yard for it on behalf of Johnson. Devereaux, who worked with Farrier and for Johnson, testified that Johnson charged $50-60 per load, where a load comprised five to seven yards of topsoil. The record supports the finding that 1,000 yards of topsoil was removed and the court’s estimate was conservative. The presentence report indicated that more than 10,000 yards had been removed.
The district court’s findings involve assessments of witness’ credibility and are therefore owed great deference. The court’s acceptance of Farrier’s testimony and the evidence that at least 1,000 yards of topsoil was removed was not error. Calculation of the sentence was correct.
AFFIRMED.
. Covenant 9 required the defendant to "operate the property in a good and husbandmanlike manner; ... and not to abandon the property, or cause or permit waste, lessening or impairment of the security_” Covenant 12 provided that "[njeither the property or any portion thereof or interest therein shall be leased, assigned, sold, transferred, or encumbered, voluntarily or otherwise, without the written consent of the Government....”